Safe places [Safe Third Country Agreement Supreme Court case]

Bit unbalanced in terms of experts interviewed. Would be useful to have a dissenting view for contrast as there is room for debate on the SFCA:

The Safe Third Country Agreement with our Southern neighbour that compels would-be refugees to cross into Canada at unofficial border crossings was bound to end up before our Supreme Court at some point. Last month, the top court finally granted leave to review its constitutionality. The Federal Court initially ruled in 2020 that the agreement violated refugee claimants’ Charter rights by deporting those who arrived from the U.S. and had filed a claim in Canada in contravention of the STCA. The declaration of invalidity was suspended to give the government time to take action, and then the Federal Court of Appeal overturned the decision.

There are several key questions the Supreme Court must address now, says Janet Dench, executive director for the Canadian Council for Refugees, who brought the challenge along with several asylum claimants. She calls the Federal Court of Appeal ruling “disturbing,” having “left us with a sense that there is no real recourse for violations of refugees’ rights.”

She also expresses concern that a broader application of the Federal Court of Appeal’s ruling could affect other Section 15 Charter claims.

Indeed, part of the Council’s case hinges on the failure of the U.S. to adequately protect people fleeing gender-based persecution, which it says was exacerbated under former President Donald Trump’s administration. The Federal Court rendered its judgment based on Section 7 arguments, and did not consider Section 15 claims. Having overturned the Section 7 argument, the Federal Court of Appeal also did not need to look at Section 15.

Another issue is that the Federal Court of Appeal held that the plaintiffs were wrong to challenge the designation of the U.S. as a safe third country. Instead, it’s up to cabinet to regularly review the designation, and therefore it is cabinet’s decision that must be challenged.

“If this decision and analysis was to stand, then lawyers would constantly be asking what they are challenging,” says Dench. “Are they challenging that a regulation was put into force that disadvantages or violates certain people’s rights, or should they be challenging the fact that regulation hasn’t subsequently been set aside,” says Dench.

Jamie Chai Yun Liew, professor at the University of Ottawa, who has previously represented the Canadian Council for Refugees but is not involved in this matter, notes that the focus of the Federal Court decision was on the impact of the decision-making by those at the border implementing the STCA.

“There was a lot of social science, affidavit and first instance evidence presented to the court of the experiences of migrants who have been turned away at the border and their experiences,” Liew says. “One of the things that the [Federal Court] focused on was the immediate detention of people who were turned away at the border, and the risk of them not even having their refugee claim assessed at all by either country.”

Liew notes that the Federal Court of Appeal focused instead on “safety valves” that allowed for claimants to access a different assessment or protection before the decision leading to the harm that the applicants described, including federal review of the STCA.

“During the discovery process, the government was very resistant in sharing any information about the internal political system of how the Safe Third Country was reviewed, so there’s very little evidence on that,” Liew adds. “What evidence there is, publicly, doesn’t show that the government has done a very deep review of these kinds of things, despite increasing evidence that the United States is a hostile place for refugees, especially during the Trump administration.”

Despite the evidence of harms, Liew notes, the government’s unwillingness to come forward with information during the discovery process means the Supreme Court will be limited in its ability to examine what actually happened.

“It will be interesting to see how those on the bench absorb the evidence and what angles they take,” Liew says.

Liew hopes that the court ensures that Charter rights aren’t being trampled under the pretext that the so-called “safety valves” are available to refugee claimants. She notes that past ruling on immigration by the Supreme Court have raised questions around alternative remedies. On paper there are mechanisms, such as pre-removal risk assessments, whereby a person can apply to remain in Canada if they are at risk of physical harm in the event they get deported to their country. In reality, however, people have difficulty accessing these measures.

Audrey Macklin, professor and the Rebecca Cook Chair in Human Rights Law at the University of Toronto, says that Canada can neither directly violate the Charter rights of those seeing refugee protection, or indirectly, by returning them to a country that will violate fundamental human rights.

“We’re talking about arbitrary detention, separation of families, detention of children, substantive doctrines that deny women fleeing gender persecution, and so on,” says Macklin. “Procedurally, there is also an issue about the failure of the Canadian government to regularly monitor the United States for compliance with those fundamental human rights obligations.”

Macklin adds that the STCA is predicated on the notion that the U.S. is safe for people to seek refugee protection. Even if it was not when the agreement was signed and implemented, circumstances can change. The problem is that Canada has no procedure to scrutinize whether the U.S. continued to be a safe country, she says.

What’s more, Canada routinely evaluates the safety of other countries as part of refugee determination itself. It would hardly be an overstep for Canada to do the same with the U.S. Besides, there are provisions in the STCA allowing either country to suspend it for two six-month periods, or to terminate it with one year’s notice. “There’s nothing untoward about Canada doing that,” says Macklin.

Liew doesn’t think the court will strike down the whole Immigration and Refugee Protection Act. It’s not the legislation that is problematic so much as the Safe Third Country Agreement, which flows from provisions in the Act.

“My suspicion would be that they would suspend or ask the government to terminate the agreement that flows from the provision, and it wouldn’t be striking a provision from the legislation per se,” Liew says. “Or they could give the government that six-month window, as the Federal Court did, to get their act together and either review it or amend it, and that might be a way for the government to save face.”

Or the Supreme Court might find the violation so glaring that it suspends it right away, she says. But its history with immigration decisions shows a pattern of moving more cautiously.

Dench notes that because the situation in the United States can change from year to year, there isn’t an expectation that the Supreme Court will make findings of fact. Instead, it could provide a pathway for these kinds of matters to be brought to the courts for evaluation.

Dench also disputes that the situation in the U.S. is solely attributable to Trump’s policies. Since he left office, it’s not like there’s been a complete reversal of his border policies.

“We don’t expect an impartial analysis to say that all of the existing problems have been solved,” Dench says.

Ultimately, says Liew, the agreement has failed to live up to its promise. It hasn’t stopped people from coming to the border, though it has made it harder to do so safely. There are countless stories of claimants who lost fingers from frostbite at irregular crossings or at the quasi-official crossing facility at Roxham Road in Quebec.

Therefore, she would advise the government “to look at how people can access our official ports of entry and process them in a way that is humane and fits with our international law obligations.”

Macklin notes that the STCA was struck at the behest of Canada, given that we only have one border. And though it is a mechanism to put breaks on the flow of people who can reach Canada and make refugee claims, she also disputes the notion that it is intended to combat “asylum shopping.”

“In absolute and relative terms, the number of asylum seekers that Canada receives is trivial,” says Macklin. “If you were seeking refugee protection and you had a child with you, and you knew that the United States would rip you away from your child, do we call it asylum shopping because you say I can get to Canada, please let me do that?”

Source: Safe places

Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

Looks like a defeat for the more “anecdotal” approach of focussing on individual cases rather than the broader administrative oversight issue:

In a setback for refugee advocates, the Federal Court of Appeal has rejected the argument that it is unconstitutional for Canada to turn back refugees at the U.S. land border and prevent them from seeking asylum in this country.

The court sided with the federal government Thursday in overturning a lower court decision that had called into question the future of the Safe Third Country Agreement (STCA), amid arguments that the United States cannot be considered a safe country for asylum seekers.

The decision will have devastating effects on would-be refugee claimants, their advocates say.

“The real consequences of this decision rest with those refugee claimants who are being returned to U.S. detention facilities after being turned back and facing harm both in jail and in the U.S. asylum process,” said Amanda Aziz of the Canadian Association of Refugee Lawyers.

“What is lost in this decision are the people who will continue to face real and severe harm because of the ongoing operation of the STCA.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U. S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that grew louder during the Trump administration.

In July, the Federal Court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings, saying the impacts of the policy “shock the conscience.”

Justice Ann Marie McDonald had given Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid. That deadline was later extended at the request of the government while the appeal was being heard.

However, in its decision released Thursday, Canada’s appeal court said lawyers for asylum seekers and their supporters focused on the wrong issues in challenging the law’s constitutionality.

It said there are proper checks and balances in the legislative scheme to ensure Canadian laws and the charter are upheld, and it’s within the government’s authority to make regulations designating a country as safe for refugees.

Instead of using individual refugees’ experiences to show the bilateral pact itself violated their Charter rights, said the appeal court, lawyers for the litigants should have made a case of how existing administrative oversight has failed to safeguard their rights.

“The legislative scheme as a whole, assuming it is operated properly, is designed to protect fundamental human rights, including charter rights,” wrote Justice David Stratas in a unanimous decision on behalf of the three-member panel.

“Based on the record before us, to the extent that detrimental effects are being suffered by persons being returned to the United States, the legislative scheme as a whole is not to blame.”

The federal government welcomed the decision.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system and the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims at the Canada-U.S. land border,” said Immigration Minister Marco Mendicino and Public Safety Minister Bill Blair in a joint statement.

In its ruling, the appeal court said Parliament created a mechanism to monitor the designated country’s compliance on an ongoing basis.

Although the law doesn’t specify what continuing review means, who should conduct it and what should be examined in a review, a policy was developed for the assessment based on a wide variety of governmental and non-governmental sources.

The court said immigration officers also have a number of powers and discretions to make exemptions to accept claims by individuals who would otherwise be ineligible to cross into Canada and seek asylum under the Safe Third Country Agreement.

As well, refugee claimants have access to the Federal Court if they believe the circumstances of their removal warrant the court’s intervention.

“In this case, there was no evidence that could support a finding that the treatment of returnees to the United States at the Canada-United States border ‘shocks the conscience,’” said the appeal court.

“There is evidence of individual cases of substandard treatment but nothing that rises to the very high level required by the ‘shocks the conscience’ standard.”

In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees.

However, the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.

In 2017, those groups returned to the court with a group of asylum seekers whose access to Canadian asylum was denied under the Safe Third Country Agreement to support their arguments.

This appeal court said some of the evidence, although voluminous, is piecemeal and individualized and, thus, is problematic for drawing system-wide inferences concerning the situation in the U.S.

“The value of evidence is not measured by the pound,” Justice Stratas wrote. “The evidence of the particular treatment of ten individuals — all selected by the claimants — cannot itself provide a basis for making system-wide inferences.”

Citing a previous court case that found psychological suffering inherent in the plight of refugees fleeing persecution, Stratas wrote: “One must ask whether sending refugee claimants back to the United States actually increased psychological suffering above this inherent level.”

Janet Dench of the Canadian Council for Refugees said the court’s findings were disappointing.

“The court heard the evidence of the very horrific experiences of people who were sent back to the U.S. The conditions in detention were found to be completely unacceptable by the federal court judge. Those experiences were not engaged by this court,” said Dench.

“Those experiences, the rights abuses and their suffering don’t seem to be heard in this (appeal) court.”

Source: Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

Canada has turned back 4,400 asylum seekers in 5 years

Of note. A bit less than the 55,000 or so that crossed the border:

Canada has turned away at least 4,400 asylum seekers at the U.S. border since 2016 — including some who were hoping to find refuge here at the height of the global pandemic — according to newly released government figures.

Nearly half of those trying to enter Canada over that five-year period made the attempt in the year after U.S. President Donald Trump took office, according to figures released in response to a parliamentary request from NDP MP Jenny Kwan.

Under the Safe Third Country Agreement (STCA), which has been in effect since 2004, Canada and the U.S. consider each other to be “safe countries” for refugees and require them to make their claims in the country they arrive in first.

The agreement has long faced criticism and legal challenges from refugee advocacy groups, who say the agreement is an inhumane way to limit the number of people Canada accepts as refugees. They say the U.S. is not a safe country for all refugees and that the dangers they face have increased under the Trump administration.

The federal government is appealing a Federal Court ruling earlier this year that found the STCA infringed Charter rights.

The figures provided to Kwan show there was a spike in the number of asylum seekers turned back at the border after Trump was elected in 2016 and took office in 2017.

In 2016 there were 742 people turned back at the border. That figure jumped to 1,992 in 2017. There were 744 denied entry in 2018 and 663 in 2019.

Between Jan. 1 and Sept. 23 this year — a period which captures the height of the first wave of COVID-19 — 259 people were turned back at the border.

‘Even more precarious’

Kwan called that “really disturbing.”

“In the face of a pandemic, things are even more precarious for people who need to get to safety and Canada actually did not hesitate to turn people back,” she said.Kwan said the Trump administration imposed detention and deportation policies that violated international human rights and provoked widespread fear among refugees. By turning away asylum seekers, Canada is “complicit” in the violation of their rights, she said.

Kwan said Canada should immediately suspend the STCA and work to negotiate a new agreement with U.S. president-elect Joe Biden that addresses human rights issues. But she said the “aggressive and intense” detention policies could linger.

“I think even with the Biden administration, that policy may still continue to exist, and even if the Biden administration wants to make changes, it’s not going to happen overnight,” she said.

Mary-Liz Power, a spokesperson for Public Safety Minister Bill Blair, said the government appealed the Federal Court ruling because it believes there were errors in key findings of fact and law.

She said the decision mistakenly suggests that all asylum claimants who are ineligible under the STCA and turned back to the U.S. are automatically detained as a penalty. She also noted that the U.S. remains a party to the UN Refugee Convention.

Refugee pact ‘fair, compassionate’: Blair spokesperson

“The STCA, which has served Canada well for 16 years, ensures that those whose lives are in danger are able to claim asylum at the very first opportunity in a safe country,” she said.

“We are in continuous discussions with the U.S. government on issues related to our shared border. We believe that the STCA remains a comprehensive vehicle for the fair, compassionate and orderly handling of asylum claims in our two countries.”

As for the spike in numbers in 2017, Power said that 2017-2018 recorded the highest number of globally displaced individuals since the Second World War.

Justin Mohammed, human rights law and policy campaigner for Amnesty International Canada, said a number of factors could have driven that sharp increase, including global patterns and Trump’s policies.

He said Canada should be fulfilling its international obligations under international refugee law at all times — even during a pandemic, when safety concerns are heightened.

Mohammed pointed to exemptions made for students, family reunification and other immigration classes that allow people to arrive in Canada despite travel restrictions.

“Why are refugees being excluded from that? They’re able to quarantine or be required to have a quarantine plan just like anyone else … so why is there not the ability to be able to provide protection?” he said.

Partial picture

Janet Dench, executive director of the Canadian Council for Refugees, said the 2020 figures represent only a partial picture of the people turned back to the U.S. because of added restrictions after the border closed March 20.

At that time, refugee claimants were denied entry on public health grounds whether they arrived at an official point of entry or at another crossing — such as Roxham Road in Quebec — where the STCA does not normally apply.

Despite assurances the Canadian government says it received from the U.S. that refugee claimants directed back would not be subject to enforcement such as detention or removal, Dench said refugee advocates in Canada know of at least two people who were detained in the U.S. after being directed back.

Conservative immigration critic Raquel Dancho said the Liberal record on administering the refugee and asylum system was one of “mismanagement, years-long backlogs and failure,” even before the pandemic.

“Conservatives have long been calling on the government to close illegal border crossings and work with their American counterparts to close the longstanding loopholes in the Safe Third Country Agreement so that refugee and asylum seekers have a fair, compassionate and effective pathway to come to Canada,” she said in a statement.

Source: Canada has turned back 4,400 asylum seekers in 5 years

Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’


Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of a bilateral pact that stops would-be asylum seekers from making a claim here via the U.S., the federal government is warning.

This country will suffer “irreparable harm,” especially amid a global pandemic, if the Federal Court of Appeal does not suspend an earlier lower-court order that struck down the Safe Third Country Agreement, Ottawa argues.

In July, the Federal Court ruled the accord unconstitutional because the United States routinely detained asylum seekers in poor conditions. It gave Ottawa six months — until Jan. 22 — to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact becomes invalid.

On Friday, the appeal court will hear a motion by the federal government to extend the deadline until a full appeal can be heard on a later date.

“An influx of refugee claimants will impair the sustainability of the systems that support refugee claimants while their claims are pending. Provincial and municipal governments are struggling to provide housing and social services,” the government says in its submissions.

“This unpredictability is significantly heightened by the global pandemic. Should the reopening of the border between Canada and the USA coincide with the end of the suspension period, a surge of asylum claims at the border is anticipated.”

Critics have argued the U.S. asylum system is cruel and inhumane, especially since President Donald Trump came into power in 2016 on an anti-immigrant agenda, building a wall to shut out illegal immigrants from the south and separating migrant children from their families. These critics said the Canadian government’s request should be dismissed because infringements of refugees’ rights outweigh any alleged public interest in maintaining the status quo.

“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed of Amnesty International Canada, one of three litigants who launched and won the constitutional challenge.

“We are hopeful that the Federal Court of Appeal will affirm the deadline, so that no refugee protection claimant will be handed over by Canada to face the horrors of U.S. immigration detention past January 2021.”

Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. It lets Canada turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border, on the basis that they should pursue their claims in U.S., the country where they first arrived.

In its submissions, the federal government says the agreement, in place since 2004, is in line with international refugee law to ensure claimants have access to a fair asylum process in an “orderly and efficient manner.” There are exemptions and mechanisms in place to avoid returning would-be asylum seekers to risks and danger.

While the U.S. asylum detention system may be unacceptable, it says the Canadian charter does not apply to foreign laws and processes.

“Failure to grant this stay will result in irreparable harm to the public interest, the functioning of the border, the sustainability of the Canadian asylum system and the services and resources that support claimants in Canada,” the government says.

According to Ottawa, all levels of governments are already struggling to provide services to the 56,515 asylum seekers who skirted the safe third country restrictions by crossing “irregularly” into Canada between official land ports of entry from 2017 to 2019.

“An additional influx would further strain those already stretched systems and resources,” the government cautions, adding that the surge will create further “negative ripple effects and backlogs” in the overall immigration and refugee protection scheme.

“There is a strong public interest in affording Canada control of its borders to regulate the flow of persons and goods and to ensure the orderly processing of claims between Canada and the USA.”

However, the respondents, also including the Canadian Council for Refugees and the Canadian Council of Churches, argued that the lower court’s finding is already “tantamount” to a determination that the Canada-U.S. agreement is not in the public interest.

They said the government’s assertions of irreparable harm to the asylum system and services for claimants in Canada are based not on evidence but on a series of speculative claims by officials at the immigration department and Public Safety Canada.

The pandemic has actually made the conditions worse for asylum seekers, they argue. As of Oct. 6, the U.S. Immigration and Customs Enforcement reported 6,387 confirmed COVID-19 cases in custody, including eight COVID-19-related deaths of detainees.

“The appellants’ suggestion that COVID-19 makes it more difficult to predict ‘asylum intake volumes’ is misleading. While the pandemic is unprecedented, its effect on ‘asylum intake volumes’ is clear: it is dramatically suppressing the number of new refugee claims,” said the respondents in their submissions.

“It is simply harder and more dangerous to travel during the pandemic, and travel to Canada is far more restricted.”

The NDP’s immigration critic Jenny Kwan agrees.

“By appealing the court ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” said Kwan, who is also the MP for Vancouver East.

“Instead of accepting the court’s ruling and terminating the agreement, they have chosen to double down on turning back asylum seekers to a country that has a policy of separating children from their parents without any way of reuniting them,” she added. “It’s a heartless and shameful act. It’s un-Canadian.”

Source: Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’

‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

From the legal critics:

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?”

Source: ‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

Liberals appealing ruling striking down Canada-U.S. asylum agreement

Not surprising given that the ruling reflected in part the particular circumstances of asylum seekers that were at the heart of the case:

The Liberal government is appealing last month’s Federal Court decision that ruled the Safe Third Country Agreement — Canada’s asylum agreement with the United States — infringes upon the Canadian Charter of Rights and Freedoms.

In a decision released July 22, Justice Ann Marie McDonald said the agreement — which stops people from entering either Canada or the U.S. at official Canada-U.S. border crossings and asking for asylum — violates the section of the Charter guaranteeing “the right to life, liberty and security of the person.”

McDonald suspended her invalid ruling for six months to allow Parliament to respond.

Public Safety Minister Bill Blair said in a statement Friday the government filed an appeal today because they believe there are factual and legal errors in some of the court’s key findings.

“There are important legal principles to be determined in this case, and it is the responsibility of the government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” reads the statement.

“Canada has a long and proud tradition of providing protection to those who need it most by offering refuge to the world’s most vulnerable people, and the government of Canada remains firmly committed to upholding a compassionate, fair and orderly refugee protection system. The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first safe country in which they arrive.”

The 16-year-old agreement, which remains in effect, recognizes both countries as “safe” countries for migrants and states that refugee claimants are required to request refugee protection in the first country they arrive in — meaning Canadian border officials would send back to the U.S. any would-be refugee claimants arriving at an official border crossing into Canada.

The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and a number of individual litigants brought the original case forward and argued that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks — including detention and eventual deportation to countries where they could face harm.

Conservative MP and immigration critic Peter Kent immediately issued a statement supporting the appeal.

“While we are pleased the government has decided to appeal this ruling, Canadians’ confidence in the immigration system has been rocked by years of Justin Trudeau’s failure to address these concerns, and his failure to restore integrity and compassion to the immigration process,” he said in a statement.But the NDP’s critic Jenny Kwan called the move the a “heartless and shameful act.”

“By appealing this ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” she wrote in a statement Friday afternoon.

“It’s un-Canadian.”

Source: Liberals appealing ruling striking down Canada-U.S. asylum agreement

Canadian court correctly finds the U.S. is unsafe for refugees

Sean Rehaag and Sharry Aiken on the court decision. To date, haven’t seen any media commentary from those more to the right on the court decision and the CPC Immigration Critic Peter Kent has also been silent. Sharp contrast to all the earlier commentary and criticism:

This week, Canada’s Federal Court ruled that the Canada-U.S. Safe Third Country Agreement (STCA) is unconstitutional.

Under the agreement, refugee claimants entering Canada at land ports-of-entry can be returned directly to the United States without being allowed to make a refugee claim in Canada. The agreement was a quid pro quo for concessions offered to the U.S. after 9/11, including a “smart border” accord, enhanced information-sharing and joint border enforcement.

Advocates for refugees have long argued that the STCA violates international refugee law and Canadian constitutional law. Differences between the refugee determination systems in Canada and the U.S., as well as differences in the rights enjoyed by refugee claimants in both countries, mean that some people who would be recognized as refugees in Canada would be denied protection south of the border.

In other words, the U.S. is not “safe” for at least some refugees.

Trump’s election worsened situation

These arguments took on an especially urgent tone after Donald Trump’s election as American president in November 2016.

The Trump administration has implemented many racist, xenophobic and anti-refugee policies to dissuade people from seeking asylum in the U.S. For example: Harsh detention practices (including detention of young children), family separation, restrictions on the refugee definition (such as excluding people facing gender-based violence), militarization of the border and of course attempting to build a wall along the U.S.-Mexico border.

This prompted a growing chorus of voices — from law professors to human rights organizations and political parties — to call on Canada to suspend or withdraw from the STCA.

Their arguments are persuasive. How can a country be considered safe for refugees if it locks up refugee kids in cages or refuses refugee protection to women facing gender-based violence?

Closing the loophole

Unfortunately, these voices have been ignored. Instead, worried about critiques from the right about weakness on border control, the federal government under Prime Minister Justin Trudeau contemplated trying to get the U.S. to extend the agreement to the entire border — not just official land ports of entry.

The U.S., however, has little incentive to expand the agreement, which would block even more asylum-seekers from leaving the United States for Canada, and there has been little movement on this front.

This inaction left the matter to the courts. Lawyers for refugee and human rights organizations, as well as refugee claimants, went to Federal Court, arguing that the STCA is unconstitutional.

Federal Court Justice Ann Marie McDonald agreed with them.

Her decision focused narrowly on what happens to refugee claimants who are turned away under the STCA.

And what happens is atrocious. Refugee claimants are handed over to American officials who detain them for weeks. Conditions of detention are inhumane. Solitary confinement is common. Access to lawyers is restricted, which makes it harder to secure refugee protection.

Worse still, these are intentional policies aimed at making the experience of seeking asylum in the U.S. so traumatic that others will be discouraged from making the same journey.

As Justice McDonald held:

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty …. penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational conventions upon which it was built.”

No safety for refugees

In other words, U.S. immigration detention practices violate international refugee law and undermine the basic premise of the STCA that both countries are safe for refugees.

So there we have it. A Canadian court has determined that American detention practices are “grossly disproportionate” and “shock the conscience,” and that Canada cannot be complicit by sending refugee claimants to the U.S. to face these practices without violating constitutional rights to life, liberty and security of the person.

The question now is what comes next.

The Federal Court suspended its declaration of constitutional invalidity for six months to allow Canadian Parliament to respond.

The government could appeal the decision. If that happens, the STCA will be tangled up in the courts for years — during which time more asylum-seekers like Nedira Mustefa, one of the applicants in the case, will find themselves in solitary confinement in U.S. detention centres. Mustefa told the court she felt “scared, alone and confused,” with no sense of when she would be released, during her time in American detention.

Alternatively, the Canadian government can send a clear signal that it cares about constitutional and international law, heed Justice McDonald’s findings and take steps to immediately suspend the STCA.

The detention practices that she focuses on in her decision are only one among many ways in which the U.S. has attacked refugee rights. These attacks are mounting. The Trump administration recently proposed reforms that would gut what remains of the American asylum system. Every day that the STCA remains in effect, Canada continues to be complicit in these attacks.

Enough is enough. The STCA must be suspended.

Source: Canadian court correctly finds the U.S. is unsafe for refugees

‘Canada cannot turn a blind eye’: Federal court says Safe Third Country Agreement with U.S. violates charter

The big news this week, with the question will the government accept or appeal this decision given that defending the STCA with the Trump administration would be different under a possible Biden administration:

In a ruling that lambastes the American government’s detention of asylum-seekers and chastises Canadian officials as complicit, this country’s Federal Court has ruled the so-called Safe Third Country Agreement is unconstitutional.

The ruling is being hailed as a major victory for refugee rights — and drawing calls from advocates for Ottawa to immediately and unilaterally suspend the agreement with the United States.

“Security of the person encompasses freedom from the threat of physical punishment or suffering,” Justice Ann Marie McDonald wrote in her 62-page decision, which was released Wednesday.

“The accounts of the detainees (in the U.S.) demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that have grown louder and more pronounced during the Trump administration.

In its judgment, the court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings. The court gave Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid.

“The evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada,” McDonald said. “The ‘sharing of responsibility’ objective of the STCA should entail some guarantee of access to a fair refugee process.”

Refugee advocates urged the Liberal government to move quickly to suspend the agreement, which the terms allow.

“Refugee claimants turned away at the Canada-U.S. border face grave human rights violations in the United States, notably atrocious conditions in immigration detention,” said Alex Neve, Secretary General of Amnesty International Canada, one of the parties.

“Under no circumstances should the government consider appealing this ruling. It is time to stop pretending that all is right when it comes to protecting the rights of refugees in the U.S. Not one more refugee claimant should be turned away at the Canada-U.S. border.”

Mary-Liz Power, spokesperson for Public Safety Minister Bill Blair, would not say whether the government planned to appeal the court decision.

“We are aware of the Federal Court’s decision and are currently reviewing it. Although the Federal Court has made its ruling, that decision does not come in effect until January 22, 2021. The Safe Third Country Agreement remains in effect,” Power said in an email.

U.S. President Donald Trump’s anti-migrant policies have spurred an influx of so-called irregular migrants skirting asylum restrictions by crossing outside of Canada’s official ports of entry, where restrictions have applied.

More than 50,000 asylum seekers have come here that way via the U.S. over the past two years. Once here, after passing initial medical and security screenings, refugees can work and access health-care pending a decision on their asylum claims.

“When the Trump administration attempted to impose their travel ban in January 2017, it was obvious that the Liberal government could no longer count on the United States to live up to its international and humanitarian obligations,” said NDP immigration critic Jenny Kwan.

“Contrary to what Minister Blair has said in the past, this (ruling) proves that refugees are not simply ‘asylum shopping.’”

After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and U.S. non-governmental organizations and refugee lawyers started their effort to challenge the legality of the asylum restrictions.

In 2017, they connected with a Salvadoran woman in the U.S. who sought asylum after she was raped and threatened by the notorious Mara Salvatrucha gang in El Salvador, and agreed to be the lead litigant. The other litigants included a Syrian family of four and a young Ethiopian woman, all of whom were denied access to asylum in Canada. The three Canadian rights groups, including the Canadian Council for Refugees and the Canadian Council of Churches, also enlisted nine other witnesses

During the hearing in November, the court reviewed evidence that showed detainees in the U.S. had no access to phone calls and legal counsel or translators; have been lost due to transfers between detention centres; and sometimes were held in solitary confinement.

“The court could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them,” said Dorota Blumczynska, president of the Canadian Council for Refugees.

“Their experiences show us and convinced the court that the U.S. cannot be considered a safe country for refugees.”

The court decision also called out Canadian officials’ responsibility.

“Canada cannot turn a blind eye to the consequences … in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” Justice McDonald wrote.

Queen’s University immigration law professor Sharry Aiken said it’s “reasonable” to expect an influx of refugee claimants at official ports of entry from south of border in light of the ruling, though it may not happen immediately due to the COVID-19 border restrictions.

“The court ruling itself does not address the current (pandemic) context but the implications of the ruling signal that Canada should step up immediately to protect the rights of claimants approaching Canada for asylum,” Aiken said.

“Canada has proven itself more than capable of adequately addressing spikes in the numbers of asylum seekers. Constitutional rights are not about the numbers, in any event.”


Ontario overestimated cost of services to irregular border crossers, AG finds

In contrast to Quebec, which estimated correctly:

Ontario significantly overstated the costs of providing services to asylum seekers coming into Canada from the United States, the province’s auditor general said Wednesday.

In a special report, Bonnie Lysyk said the $200 million estimate given by the governing Progressive Conservatives in 2018 represented the cost of providing services to all refugee claimants, not just so-called “irregular” border crossers.

She said the minister of social services at the time, Lisa MacLeod, was given inaccurate information by civil servants.

“The accuracy of information provided by the ministry to the minister for the public announcement was far off the mark,” Lysyk said in a statement Wednesday.

“Senior government officials need to ensure the accuracy of the information provided to government for public announcements and decision-making.”

MacLeod had formally requested $200 million from Ottawa to cover costs she said were incurred by the province and its municipalities as a result of an influx of asylum seekers arriving from the U.S.

Lysyk said her office found the Ontario government spent roughly $81 million on services for irregular asylum seekers between April 1, 2017 — when the federal government first started tracking their arrival — and July 31, 2018.

More costs were incurred until the border was closed due to the COVID-19 pandemic, Lysyk said.

She recommended Ontario seek an immigration agreement with the federal government that includes compensation for providing services to refugee claimants, including irregular border crossers.

The current deal does not, and the federal government has given $15.6 million in compensation to Toronto, Ottawa and Peel Region for their expenses during the April 2017 to August 2018 period, she said.

Quebec, which has a separate cost-sharing agreement with Ottawa, incurred $300 million in costs and has received $286 million in compensation, Lysyk said.

When asked about the report Wednesday, Premier Doug Ford said his government did not intentionally mislead the public and was simply relying on the information provided.

Ford blamed the federal government for leaving the province to shoulder the costs of what he called “illegal immigration,” and suggested the auditor general should do another report to examine more recent expenses related to the issue.

“Where’s the money? We need the money,” the premier said. “Every single day, it’s costing us more and more and more.”

Opposition legislators criticized the government for using inflated numbers to make policy decisions.

“The auditor general’s report makes clear that the claims Doug Ford and Lisa MacLeod made about the cost of accommodating asylum seekers in Ontario were pure fiction,” NDP Leader Andrea Horwath said in a statement.

“Shame on them for making stuff up to fan the flames of division instead of uniting us like they should have been.”

Liberal House Leader John Fraser said the Ford government has a record of “continually overstating, overstepping, and exaggerating.”

Ford previously came under fire for saying his government inherited a $15 billion deficit from the Liberals, and later revising that number down by about half, to $7.4 billion.

Green Party Leader Mike Schreiner said the debate over the costs of services for irregular border crossers took place at a time when many governments were “playing politics with immigration.”

“The government inflated this number … to provide cover for what in this case is a divisive political agenda, which I think was to question immigration policy in this country. And I think it’s wrong,” he said.

Canada’s Safe Third Country agreement with the U.S. says asylum seekers are required to make their claims in the first “safe” country where they arrive, which means those who try to enter Canada at an official land crossing are sent back to make their claim in the U.S.

The agreement does not cover those who come in through unofficial crossings, known as “irregular” asylum seekers.

The auditor says 36 per cent of refugee claimants in Ontario in recent years entered at unofficial points.

Federal data show 26,415 asylum claims were filed in Ontario in 2019, which could include some filed by irregular border crossers.

The province provides services such as temporary housing, settlement services and language training.

Source: Ontario overestimated cost of services to irregular border crossers, AG finds

Some refugee claimants can now enter Canada

Good overview of the limited exceptions:

Some refugee claimants from the United States can once again enter Canada.

The Canada Border Services Agency announced Wednesday that claimants eligible for exemptions under the Safe Third Party Agreement between Canada and the U.S. can enter the country through official land border crossings. Those entering through irregular border crossings will still be returned to the U.S.

“People who arrive irregularly between border crossings are still prohibited from entering Canada to make a refugee claim,” the federal agency said on Twitter, in French.

“As of today, claimants can enter the country at designated land ports of entry only if they are among the few who are eligible for exemptions under the Safe Third Party Agreement.”

Those exempted from the agreement include claimants with family in Canada, unaccompanied minors or people who already have permits, like a student visa. They will also be subject to the mandatory 14-day quarantine for new arrivals.

Last month, in announcing the closure of the Canada’s border with the United States, as part of efforts to contain the spread of the COVID-19 pandemic, the federal government said it would return all refugee claimants coming into the country via irregular crossings back to the U.S. The Americans also said they would do the same for those entering their country from Canada.

At Monday’s sitting of the House of Commons, Public Safety Minister Bill Blair, answering a question from Conservative MP Joël Godin, said that at least 10 people had made irregular crossing since the ban. They were returned to the United States, Blair confirmed.

News of the change to allow some refugee claimants to enter Canada through designated ports of entry first came on Wednesday when Jean-Pierre Fortin, president of the Customs and Immigration Union, gave radio interviews.

Fortin called the change a “surprise” move that was communicated to his members at the end of the day Tuesday.

“We are in a state of crisis,” Fortin said. “We think it is too early to open the border.”

He added that the Canadian Border Services Agency has reserved a nearby hotel, with about 50 rooms, where refugee claimants who take advantage of this new opening would have to go into quarantine for 14 days before the claims could be processed.

Fortin also expressed concerns that Customs officers would need protective equipment and safeguards to deal with people who may have the COVID-19 virus and he said the waiting room for people coming through the border crossing is not large, making social distancing difficult.

In Ottawa, when he was asked about the change at his daily pandemic briefing, Prime Minister Justin Trudeau said as far as he knows the Canada-U.S. Safe Third Country Agreement is still in force. He then referred the question to Minister Blair.

CBSA media relations staff disclosed the Order in Council to reporters seeking more information. The new rules remain in effect until May 21, the date the Canada-U.S. border is set to reopen.

The change was requested by Health Canada, according to a CBSA official, who said the intent is to “minimize the risk of exposure to COVID-19 in Canada.” The official confirmed that foreign nationals are still prohibited from entering Canada from the United States if they have “COVID-19 or have signs and symptoms of COVID-19” or officials have “reasonable grounds to suspect they have such signs and symptoms.”

Refugee rights advocates have called on the government to reopen the border to all asylum seekers.

Janet Dench, the Canadian Council of Refugees, said the ban is “wrong and unnecessary.”

Still, she said changing the rules to allow refugee claimants who have family members already in Canada to enter represents “a step in the right direction.”

“I doesn’t solve the problem, though,” Dench said, calling on the government to respect the rights of asylum seekers to come to Canada.

Source: Some refugee claimants can now enter Canada