Border Trouble: Critical Reflections on the Canada-US Safe Third Country Agreement Litigation

The Canada-US Safe Third Country Agreement (STCA) has been subject to two different legal challenges before three different Canadian courts and considered in five different judicial decisions. This notwithstanding, the litigation surrounding its legal validity is not yet conclusively determined. This article analyses all five STCA decisions to develop a critical reading of the leading decision as issued by the Supreme Court of Canada in 2023. It posits that the Supreme Court of Canada, like the appellate courts before it, erred in its understanding of the STCA. Specifically, the Court did not engage the facts on record in sufficient detail, and did not meaningfully consider how asylum seekers’ positionality informs their legal experiences. As a result, the Court arrived at flawed legal findings that mischaracterise the STCA’s operation and effect. The article concludes by arguing for a shift away from this approach as the STCA litigation continues.