A constitutional challenge to Canada's practice of sending asylum seekers back to the United States opened in the Federal Court in Toronto on Monday, with refugee advocates arguing that the Safe Third Country Agreement discriminates against some of the most vulnerable people who reach the border.

The case is being brought by Amnesty International Canada, the Canadian Council for Refugees and the Canadian Council of Churches, together with former refugee claimants. Hearings are scheduled for 9, 10 and 12 November, with a further day on 16 December.

Under the Safe Third Country Agreement, most people who arrive at Canada's land and water border from the United States and ask for refugee protection are turned back, on the basis that they should have claimed asylum in the first safe country they reached. The agreement has been in force since 2004.

The applicants argue that the arrangement breaches the equality guarantee in Section 15 of the Canadian Charter of Rights and Freedoms, because it falls hardest on racialized women, children and LGBTQI+ people, and are asking the court to declare the designation of the US as a safe third country invalid.

Women, children and LGBTQI+ claimants

The lawsuit focuses on three groups the applicants say are disproportionately disadvantaged. It argues that women fleeing gender-based persecution face particular difficulty in the United States, where their claims are often treated as private matters outside the scope of protection, and that children and LGBTQI+ claimants face a higher risk of abuse in American immigration detention.

"The United States is not a safe place for migrants and refugees, particularly those who are racialized women, children, or LGBTQI+ people," said Ketty Nivyabandi, secretary general of Amnesty International Canada. "The practice of sending some of the most vulnerable people in society back to the U.S. — right into the hands of ICE — is unjust and un-Canadian."

Asma Faizi, president of the Canadian Council for Refugees, said the evidence showed the US system was "broken and dangerous" for the groups at the centre of the challenge. "Since the Canadian government is not acting on what is plain for all to see, we are asking the court to strike down the designation of the U.S. as a safe country for refugees," she said.

Among the individual applicants is a Salvadoran family identified in court documents only as ABC, DE and FG. They are represented by Prasanna Balasundaram of Downtown Legal Services in Toronto, who said the claimants faced "a disproportionate risk of abuse in American immigration detention, as well as barriers to obtaining refugee protection".

Long-running legal battle

The challenge was first launched in 2017 and reached the Supreme Court of Canada in 2023. The court held the agreement did not breach the Section 7 right to life, liberty and security of the person, because the law contained "safety valves" that could stop a person being sent to the United States if they faced a risk of harm. It sent the undecided Section 15 equality questions back to the Federal Court.

The applicants say the safety valves have not worked in practice. In a separate case filed in June 2026, Amnesty International Canada and the Canadian Council for Refugees argue that Canada has failed to make those protections available before returning people to the United States.

Court filings show that Canada returned 4,323 claimants to the United States between 1 January 2025 and 30 March 2026.

The Federal Court is not expected to rule immediately; a decision is likely to take months after the hearings conclude in December.