The Liberal government’s appeal of a recent “damning” Federal Court decision striking down Canada’s 16-year asylum agreement with the United States is disappointing and will likely end up before the Supreme Court, say lawyers and a Senator who once practiced refugee law.
Justice Ann Marie McDonald was “bang-on,” said Independent Senator Mobina Jaffer, when she found the Safe Third Country Agreement (STCA) violates Section 7 of the Canadian Charter of Rights, which guarantees everyone “the right to life, liberty and security of the person.” In July, Justice McDonald ruled the agreement, which halts people entering Canada at official border crossings because they must instead claim asylum in the U.S., is “over-broad” and the risks of detention and loss of security of the person is “grossly disproportionate” to the administrative benefit of the agreement.
The B.C. Senator said during her 20 years practicing refugee law—before the 16-year-old agreement was brought into force—she worked on many cases where refugees crossed the U.S. border seeking asylum. None in government can be “blind or deaf to what is happening in the United States,” she said, where reports continue of parents being separated from their children and placed in cages, according to Human Rights Watch, which has called the practice a human rights violation.
Sen. Jaffer took issue with the government’s argument that ending the agreement would cause an uptick in claims and put Canada’s refugee system at risk, saying that fear was likely pushing its appeal.
“This is a fairly new thing we are doing [with the agreement]. I find it almost insulting to say we will be overwhelmed with applications… so we don’t need to follow Section 7, that’s how I see it,” she said, highlighting the contradiction in Canada’s experience compared to other nations. Before the pandemic, she travelled to Lebanon and Turkey, which each house millions of refugees, while Canada has seen 58,255 irregular crossings from the U.S. since the beginning of 2017.
“I just think they are buying time to continue the same system because they know they don’t have a strong case,” Sen. Jaffer said.
The evidence presented to Justice McDonald was “damning,” said Jamie Liew, an associate professor at the University of Ottawa, and it was the most evidence presented that Sharry Aiken, an associate law professor at Queen’s University, had seen in 30 years practicing and teaching immigration and refugee law.
“It is curious to me that the government has chosen to ignore all this evidence and instead find that there is still grounds in this agreement to operate as usual… to operate as if the U.S. is acting as an honest partner in meeting its obligations under the Refugee Convention, which it clearly isn’t,” said Prof. Liew.
The appeal means that the STCA is in effect indefinitely now, and a decision is likely years off. The Federal Court of Appeal doesn’t have “a great track record in recognizing the rights of refugees,” explained Prof. Liew, and the applicants would likely appeal an unfavourable ruling.
She and her University of Ottawa colleague Errol Mendes, a professor of constitutional law, both said they think the case is destined for the Supreme Court.
“The issues at stake are so complex, it may require a final court determining some critical issues not only relevant to this case but many other cases that involve the Charter and in particular Section 7,” Prof. Mendes said by email.
Errors in judge’s findings, feds say
The government took a month to appeal the July 22 ruling, and Public Safety Minister Bill Blair (Scarborough Southwest, Ont.) explained in a statement Aug. 21 it was because there are “important legal principles to be determined in this case” and it’s necessary to appeal ”to ensure clarity on the legal framework governing asylum law.”
Asked for more clarity on the legal groundings of that appeal, Mr. Blair’s spokesperson, Craig MacBride, said by email that the government is appealing the ruling because it believes there are errors in some of the key findings of fact and law.
“The decision suggests all asylum claimants who are ineligible under the Safe Third Country Agreement and turned back to the U.S. are automatically detained as a penalty,” he said. “This is not the case. The U.S. remains a party to the UN Refugee Convention.”
Prof. Mendes said he expects the government to attack a “crucial” part of the court decision, in which Justice McDonald said that with the agreement, the risks of detention and loss of security of the person “are grossly disproportional to the administrative benefits of the STCA,” and that the impact on a refugee of being found ineligible is “out of sync” with the objective of the legislation, and responsibility sharing between the countries “cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions,” including solitary confinement.
The federal government may attack Justice McDonald’s assessment that the STCA’s main objective is in fact an administrative benefit of sharing responsibility for refugees, he suggested.
“Instead, they will claim that getting rid of it will destabilize the entire present refugee system in Canada, given that the present system with the STCA is already backlogged with those that are not caught by the STCA,” said Prof. Mendes, though he thinks this defence likely would not succeed. “The Court has said on the many cases that it would be undermining the Charter if all that [the] government had to do to violate Charter rights is to proclaim the administrative burdens that come from living up to them.”
Prof. Liew said she hopes the Supreme Court takes up the issue, especially the question of an “alternative remedy,” which she said is often a legal argument the government invokes when it comes to Charter challenges. In this case, she said the government argues there are other avenues open to refugee claimants, when in reality most aren’t aware of their rights and when turned back to the U.S. are immediately detained.
“Once a Charter right is infringed… can it be affected by what the government calls alternative remedies? I think that’s where I anticipate their argument will rest,” she said. “If you want to look at taking Charter right infringements seriously, we should be really looking at how it operates on the ground.”
The only Charter argument Prof. Mendes could imagine the government using is a point the government has already asserted: that the U.S. has a fair detention review system, which can allow for due process and release from detention.
The experience of one of the applicants in the case, Nedira Mustefa, directly challenged that claim. She was detained in the U.S. after trying to enter Canada and spent a week in solitary confinement, which Justice McDonald said meets the test that a foreign law would “shock the conscience.”
“So the government will argue theoretical fair detention review possibilities [versus] the ‘Trumpian era’ reality of harsh treatment of refugees and increased risk of deportation to countries where life, liberty, and security of the person is endangered,” said Prof. Mendes
“Here, the appeals court will have to factor into what I call real-time realities of the life of refugees in Trump’s America versus the theoretical due process safeguards under the STCA.”
That Justice McDonald declared the STCA invalid based on the treatment of a couple refugees could also be contested by the government, he added, but the Supreme Court has said in the past—in rulings on assisted dying or anti-prostitution laws—that if a process violates the Section 7 rights of even a few people, or a small number disproportionately, the law can still be struck down, he noted.
Political issues likely at play
Prof. Aiken called Mr. Blair’s rationale that legal principles are in play a “specious” argument, seeing the choice to appeal instead as a “very transparent commitment” to a Liberal political agenda to not only maintain, but extend, the STCA.
“It is a highly charged political issue and in my view it’s almost been served up as a kind of marker or proxy for a wider political discourse on refugees and border security in a way that completely distorts the impact and implications of this agreement,” she said.
“Every day it continues in effect is another day of refugee rights being violated.”
When the agreement was brought in following 9/11, Prof. Liew said it was in part to address backlogs at the Immigration and Refugee Board of Canada. There are more innovative ways to expedite that process and address policy problems than putting people at risk of returning to places where they could endure persecution or death, she said.
“I’m very perplexed, if we’re concerned about that policy rationale, why it has to be done with a heavy-handed manner in a way that’s totally ignorant to the dire situations that refugee claimants face in the U.S.,” she said, who stressed this is not a “temporary problem” unique to Trump’s America.
The Conservative Party supports the government’s decision to appeal, said immigration critic and MP Peter Kent (Thornhill, Ont.), but he expressed surprise it took so long. He said there are a number of “inconsistencies” in the ruling, which he also expects will ultimately make its way to the Supreme Court.
There are clearly issues with the agreement, said Mr. Kent, but those mainly lie in the “loophole” that those who don’t cross at official ports of entry don’t fall under the agreement.
Justice McDonald’s ruling is based on the specific experiences of three claimants, that he said are “exceptions to the broader context” of the agreement, which he called part of a “fair and compassionate and orderly” immigration system.
“There is the issue of those in the United States who fear and may have legitimate concerns that if they’re discovered in the United States, they will experience improper treatment, but the broader intent of the Safe Third Country Agreement addresses those like the overwhelming majority of illegal border crossers,” who he said had the economic means and visas to pass through the U.S. and enter the border improperly.
NDP MP Jenny Kwan (Vancouver East, B.C.), her party’s immigration critic, called the government’s decision “horrendous” and its rationale for appeal “nonsense.”
She said she sees it as the Liberals catering to a Conservative-leaning perspective on borders and a “backdoor way” to close them.
“Has our federal government completely set aside the need for Canada to do the right thing, abide by our international obligations, and to be on the right side of history? Is their politics and the gamesmanship in politics more important than the lives of people facing persecution?”
