Ottawa disputes ruling on refugee pact with U.S.

Lawyers argue judge made serious legal errors in quashing bilateral deal

In striking down a controversial refugee pact between Canada and the U.S., a Canadian judge made “palpable and overriding errors” that warrant a higher court’s intervention, according to a written submission by government lawyers.

“These errors permeated both the Federal Court’s factual and legal findings,” lawyers for Canada’s immigration and public safety ministers argued in their factum filed in advance of an appeal hearing on Tuesday to overturn a court order against the Safe Third Country Agreement. “These findings render the STCA inoperable.”

In July, Justice Ann Marie McDonald ruled the accord unconstitutional because the United States routinely detained asylum seekers under poor conditions.

She gave Ottawa six months to fix the policy and make sure it complied with Canada’s Charter of Rights and Freedoms before the pact became invalid. The deadline has been extended until this appeal is heard.

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 the U.S., the country where they first arrived.

The pact became a hot political issue when Donald Trump was elected U.S. president in 2016 on an anti-immigrant agenda, pledging to build a wall to shut out migrants from the south and separating their children from families.

As a result, tens of thousands of asylum seekers already in the U.S. started heading north to Canada through unguarded border points to skirt the refugee restrictions.

Lawyers for the Canadian government contend that neither American asylum law nor practice mandate automatic detention for returnees who are deemed ineligible to claim asylum in Canada.

“Detention for returnees is discretionary and for those detained, there exists a robust detention review scheme, including the right to counsel,” they said in their submission to the Federal Court of Appeal.

“Where detention does occur, it is only for short periods and followed by release, unless extended detention is lawful according to the circumstances.”

The Federal Court, they claimed, failed to apply the “shocks the conscience” test, when assessing the constitutionality of removal. In wrongfully concluding that the pact breached the Canadian Charter, it also failed to recognize there are “discretionary mechanisms” in place for border agents to ensure the lawfulness of the removal.

“The Federal Court’s findings that these mechanisms are ‘illusory’ are not evidence-based, and are inconsistent with this

Court’s jurisprudence that these mechanisms are sufficient to comply with the principles of fundamental justice,” said the government in its factum.

In 2017, shortly after Trump entered the White House, Canadian and U.S. non-governmental organizations and refugee lawyers started their effort to challenge the legality of the asylum restrictions.

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.

Three Canadian rights groups — Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches — also enlisted nine others to join the lawsuit.

In their response to the government’s appeal, their legal team points out that Canadian border officers do not have discretion to exempt refugee claimants from the agreement’s restrictions based on the asylum seekers’ risk of detention upon return to the U.S.

“Following a determination of ineligibility, refugee claimants are removed to the U.S. as soon as possible,” the litigants’ lawyers said in their own factum. “Even when warranted, any such remedies are practically unavailable.”

Many returnees who had legal status in the U.S. before they approached the Canadian border are nonetheless detained and placed in removal proceedings after the Canada Border Services Agency transfers them to U.S. authorities, they argued.

Immigration detainees in the U.S. can ask for a bond hearing before an immigration judge, but an expert witness said a significant number of migrants are either not eligible for a bond, are not given a bond, or are given bonds they cannot afford to pay.

As a result, many of them need to prepare their asylum case from detention. Barring a change in circumstances, a detainee can only seek release once.

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