Canada-U.S. refugee pact valid, lawyers say

OTTAWA • Judges peppered a federal lawyer with questions Tuesday as the Canadian government argued a refugee pact between Ottawa and Washington is consistent with the Charter of Rights and Freedoms.

Canada's lawyers contend the Federal Court misinterpreted the law when it declared in July that the Safe Third Country Agreement breaches constitutional guarantees of life, liberty and security.

The court's declaration of invalidity was suspended for six months and later extended, leaving the law in place while a three-judge panel of the Federal Court of Appeal examines the issue.

The two-day hearing is slated to proceed through Wednesday.

Under the bilateral refugee agreement, which took effect in 2004, Canada and the U.S. recognize each other as safe places to seek protection.

It means Canada can turn back a potential refugee who arrives at a land port of entry along the Canada-U.S. border on the basis the person must pursue their claim in the U.S., the country where they first arrived.

Canadian refugee advocates have fought the asylum agreement steadfastly, arguing the U.S. is not always a safe country for people fleeing persecution.

Several refugee claimants took the case to court along with the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, who participated in the proceedings as public interest parties.

In each case, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land entry port from the U.S. and sought refugee protection.

They argued in court that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention and other rights violations.

In her decision last year, Federal Court Justice Ann Marie McDonald concluded the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.

Detention and the consequences flowing from it are “inconsistent with the spirit and objective” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter, she wrote.

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”

The government argues McDonald made serious legal mistakes in striking down the pact. Federal lawyers say that in finding detention makes it more difficult for asylum claimants in the U.S. to access legal counsel, McDonald ignored evidence that about 85 per cent of asylum claimants in the U.S. are represented.

During the appeal hearing Tuesday, Justice David Stratas questioned the notion the judge's findings were in error.