Federal court strikes down third-country refugee agreement
Judge argues that U.S. don't meet refugee protection requirements
CanWest News Service
Thursday, November 29, 2007
OTTAWA — The Federal Court of Canada has struck down an agreement that barred thousands of refugees from seeking refugee status in Canada, saying the U.S. does not meet international refugee protection requirements, nor does it respect international conventions against torture.
In a landmark 124-page ruling made public late Thursday afternoon, Justice Michael Phelan struck down the Safe Third Country Agreement, which had been used to stop prospective refugees from crossing the Canada-U.S. border, and part of the Immigration and Refugee Protection regulations which Mr. Phelan said violates Canada's Charter of Rights. In addition to “acting unreasonably” in concluding that the U.S complied with refugee protection conventions and conventions against torture, Mr. Phelan said the Canadian government has failed to ensure the continuing review of the agreement and U.S. practices.
“For the reasons outlined in this judgment, the United States' policies and practices do not meet the conditions set down for authorizing Canada to enter into a Safe Third Country Agreement (STCA),” Mr. Phelan wrote.
“The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture prohibition (the Maher Arar case being one example.) Further, the STCA does not comply with the relevant provisions of the Charter. Finally, the Canadian government has not conducted the ongoing review mandated by Parliament despite both the significant passage of time since the commencement of the STCA and the evidence as to U.S. practices currently available.”
The court pointed to a one-year deadline to file claims in the U.S., concluding it was inconsistent with the international conventions because it increased the chance claimants would be sent back to countries where they faced danger or torture.
Mr. Phelan also said the U.S. definition of terrorist activities can include those who never had any intention of contributing to terrorism.
“It is difficult to imagine how the governor in council could have reasonably concluded that the U.S. complies with the Refugee Convention when the law allows the exclusion of claimants who involuntarily provided support to terrorist groups. The terrorist exclusions are extremely harsh and cast a wide net which will catch many who never posed a threat. In returning claimants to the U.S. under these circumstances, the weight of the evidence is that Canada is exposing refugees to a serious risk of refoulement (return to danger) and torture which is contrary to the applicable articles of the Refugee Convention and the Convention Against Torture.”
But while the court struck down the agreement, prospective refugees won't see any change right away. The court has yet to rule on the consequences that flow from the ruling and it is also possible that the ruling will be appealed.
Under the Safe Third Country Agreement, which went into effect on Dec. 29, 2004, refugees who reached Canada or the U.S. were considered to have already reached a safe country and were generally barred at land crossings from entering the other country.
At the time, the government said the agreement would help put an end to the practice of “asylum shopping” by refugees.
However, the agreement earned the ire of refugee advocates from the very start, who pointed out that Canada's criteria for recognizing refugees were often quite different than those in the U.S., as was its treatment of refugees waiting for their cases to be heard.
Janet Dench, executive director of the Canadian Council for Refugees which was one of the groups that challenged the agreement, said the court upheld all of the council's arguments.
Ms. Dench said in the first year of the agreement, the council counted 2,500 fewer refugee claimants from Colombia alone. Previously, Colombia had been one of the biggest source countries for refugees to Canada.
Justice Minister Rob Nicholson's office did not return a phone call from CanWest News Service seeking comment.