Shifting Borders and the Boundaries of Rights: Examining the Safe Third Country Agreement between Canada and the United States

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional protection. In contrast, the Federal Court of Appeal decision conceives of the border as both static and shifting. In its treatment of the STCA, the Court conceives of the border as a moving barrier that shifts outside Canada’s formal territorial boundaries to extend state power outwards. Yet, in its constitutional analysis, the Court conceives of the border as a static barrier that remains fixed at the state’s geographic perimeter to limit access to refugee rights. By simultaneously conceiving of the border in these opposing ways, the Court of Appeal decision places refugee claimants in an impossible legal bind: it requires them to present at the (static) border to claim legal protection, but at the same time shifts the border in ways that preclude them from doing so. The decision thus suspends refugee claimants between two opposing directives, deprives them of otherwise actionable rights, and denies them recourse to meaningful legal action under Canadian law. The article argues that, in this key way, the Federal Court of Appeal decision does much more than clarify the executive discretion of the Governor-in-Council, as it purports. Rather, it redefines the Canadian refugee regime as fundamentally exclusionary towards STCA claimants, and calls into question the central principles by which this regime is distinguished and defined