Supreme Court studies refugee pact
Judges not convinced by claims that U.S. is unsafe for returning border-crossing asylum seekers
Supreme Court of Canada judges expressed deep skepticism of claims the U.S. is not a safe country where Canada should stop sending border-crossing refugee claimants.
During a top court hearing Thursday marked by several sharp exchanges, Justices Malcolm Rowe and Russell Brown challenged lawyers who want them to strike down a Canada-U.S. deal that recognizes the U.S. as a “safe country” and returns thousands of asylum seekers to the American system.
It’s long been a politically controversial agreement.
In effect since 2004, the Safe Third Country Agreement requires asylum seekers to make their claim in the first safe country they land in. It gives border agents little discretion to allow people arriving via the U.S. to stay in Canada to have their claims heard, with only limited exceptions for minors or those with close family members in Canada.
It applies to asylum seekers who come through official points of entry at the land border, but not to those who sneak across at unofficial entry points — a l oophole thousands more are exploiting at areas like Roxham Road, at the Quebec—New York border. The politics of that loophole were not at issue at Thursday’s hearing.
But the political fallout of effectively upending the deal and declaring the U.S. an unsafe destination for returning refugee claimants was clearly on the judges’ minds.
Although the judges also questioned federal government lawyers who defended the scheme as constitutional, they reserved their most pointed inquiries for the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and other intervenors who want the legislative scheme struck down.
Rowe scoffed at the group’s claim that every returned refugee claimant faces detention in the U.S., saying “it’s not automatic.”
“I’d say there’s a very serious risk of being detained if you’re illegally in the United States in exactly a parallel way that there’s a risk of being detained if you’re illegally in Canada. Sure. I mean, on what basis are you in this country? And you know, it’s clear they’ve entered on an illegal basis, their presence is not in accordance with law. What would you expect?”
Twice a Federal Court has sided with refugee advocates challenging the law, and twice the Federal Court of Appeal has sided with the Canadian government. This is the first time the top court has agreed to rule on the matter.
Rowe was dismissive of a Federal Court judge who ruled in the groups’ favour, saying he found the “sweeping aside of the entire (U.S.) system of immigration appeals … to be extraordinary. It’s as if you’re brought across the border, invariably detained and the next day put on a plane even if you face the death penalty — that’s not the reality.”
And he expressed astonishment the Federal Court found “safety valves” in the law that protect refugee rights are practically out of reach and “illusory.”
“You take the legislation and throw it over your shoulder,” Rowe said, feigning a toss of paper over his shoulder.
“I find it astonishing that any judge would say that.”
Other judges posed more measured questions, but it was clear they too worried about ditching the legislative scheme.
Andrew Brouwer, lawyer for the refugee advocates, said even though some refugee claimants might not be detained, the risk of detention in what the groups argue are inhumane conditions in U.S. detention centres, without proper access to counsel, along with virtually no way in Canada to challenge a border agent’s order to immediately leave, is a violation of the refugees’ rights under Sec. 7 of the Canadian charter to fundamental justice.
“What we’re saying is that if Canada wants to rely on the United States as a partner for refugee protection, then at a minimum Canada needs to be able to rely on the U.S. upholding its obligations to ensure effective protection to those that we hand over to the U.S.”
The groups argue the scheme fails to protect Sec. 15 equality rights of female claimants who fear persecution and gender-based violence if deported from the U.S. to their country of origin because the U.S. doesn’t recognize gender-based violence as grounds for an asylum claim.
They say Ottawa “effectively contracts out Canada’s international obligations to refugee claimants based on the premise that the U.S. will fulfil those obligations for us.”
And they say the federal cabinet has failed its obligation to continually review the law.
Brown replied the federal cabinet seems to have done at least four reviews, as U.S. administrations changed hands.
Canadian government lawyers defended the scheme, saying it is “not over broad or grossly disproportionate,” and that there are protections and discretion for exceptional circumstances built into the law.
Lawyer Marianne Zoric, representing the minister of citizenship and immigration, said the U.S. is a democracy with a well-functioning immigration system, and Canada cannot expect to apply a charter review or standards to the U.S.
“This is not a return to the country of persecution,” she said.
“When you have a democracy like the United States, you have to presume the system is fair, and just,” she said, adding that for anyone to claim otherwise, “you have an uphill burden.”
The court adjourned after several hours of oral arguments, reserving its decision.