Canada ‘contracts’ obligations to refugee claimants, advocates tell high court


Refugee and human rights advocates are telling Canada’s Supreme Court that a binational pact “excludes” Canada’s international obligations to refugee claimants in the United States, without adequate follow-up to ensure Washington is doing the job.

In a written submission, opponents of the 18-year-old Safe Third Country Agreement ask the high court to declare that the legislation underpinning the pact violates Section 7 of the Charter of Rights and Freedoms which guarantees life, liberty and the safety of the person.

The Supreme Court is scheduled to hear oral arguments today on the constitutionality of the agreement, under which Canada and the United States recognize each other as havens to seek protection.

The pact allows Canada to turn away potential refugees presenting themselves at land ports of entry along the Canada-US border on the basis that they must file their claims in the US, the country to which they arrived for the first time.

The Canadian government argues in its own court brief that returnees have access to fair asylum and detention processes south of the border. “It is not unreasonable to transfer applicants to the United States so that they can claim protection in that country.”

Canadian refugee advocates have long fought against the asylum deal, arguing that the United States is not always a safe country for people fleeing persecution.

Several asylum seekers took the case to Federal Court along with the Canadian Council for Refugees, the Canadian Council of Churches and International Amnestywho participated in the process as parties of public interest.

In each case, the applicants, who are citizens of El Salvador, Ethiopia, and Syria, arrived at an official Canadian point of entry from the US and sought refugee protection.

They argued in court that by returning ineligible asylum seekers to the US, Canada exposes them to risks in the form of detention and other rights violations.

In her 2020 decision, Federal Court Judge Ann Marie McDonald concluded that the Safe Third Country Agreement results in US authorities jailing ineligible claimants.

The detention and the consequences that flow from it are “inconsistent with the spirit and aim” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the Charter, he wrote.

“The evidence clearly shows that those who are returned to the United States by Canadian officials are detained as a sanction.”

However, the Federal Court of Appeals reversed the decision last year.

“The alleged constitutional defect in this case stems from how administrators and officials are operating the legislative scheme, not the legislative scheme itself,” the Court of Appeal said.

“But because the plaintiffs chose not to attack any management conduct, we have neither the ability nor the evidence before us to assess it.”

The Court of Appeal also found that the legislative regime was consistent with the Charter unless it could be shown that the treatment experienced by those sent back to the US “shocked the conscience”.

In their Supreme Court filing, the plaintiffs and defenders say the Court of Appeals “refused to compromise on the substantive merits of the case” and took a “highly restrictive approach to Charter review.”

They argue that the US immigration detention system has been “widely condemned for its gross violations of minimum international standards” for holding asylum seekers.

“This legislative scheme effectively contracts out to Canada’s international obligations to asylum seekers based on the premise that the United States will fulfill those obligations for us,” the filing says.

While Canada is required by law to ensure that this premise remains valid through ongoing monitoring of US asylum policies and practices, “it has not done so,” they argue.

To the contrary, the government says, at the time of the Federal Court hearing, Canada’s review of the binational agreement was “efficient, effective, and thorough,” and the information collected revealed no significant problems.

This report from The Canadian Press was first published on October 6, 2022.

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