Federal Court of Appeal overturns Safe Third Country ruling

For the foreseeable future, asylum seekers at official Canada-U.S. border crossings will be turned back to try their luck in the U.S. 

On April 15 the Federal Court of Appeal overturned a lower court ruling that declared the Safe Third Country Agreement with the United States unconstitutional.

The appeal court faulted the lower court’s ruling that safeguards against arbitrary and hasty decisions by Canada Border Services agents were not practically available and that the U.S. inland refugee determination system was dysfunctional and failed to meet the minimum standards of the United Nations Convention on Refugees.

“Broad, system-wide inferences concerning the United States from the limited nature of the individual incidents described in the record cannot be made,” Justice David Stratas wrote on behalf of a unanimous three-judge panel.

The court also rejected the lower court finding that treatment inside the U.S. immigration detention system amounts to “cruel and unusual” punishment.

“‘Cruel and unusual” has a known meaning in Canadian law. It is enshrined in section 12 of the Charter and has a high threshold. Also high is the threshold for finding that psychological suffering engages section 7 of the Charter,” said Stratas. “Neither threshold appears to have been applied.”

Since 2004 would-be refugees who present themselves at official Canadian border crossings have been told they must apply for asylum in the United States — the first safe country in which they arrived. This has led to thousands of refugees crossing into Canada at unofficial crossings between the official border posts. Once inside Canada, refugees have a legal right to claim asylum.

In the immediate aftermath of the ruling, the Canadian Council of Churches, Amnesty International Canada and the Canadian Council for Refugees are thinking of taking the case to the Supreme Court of Canada.

“We are considering our options. We assume we will appeal to SCC (Supreme Court of Canada) but are waiting to have a meeting in a week or so with our lawyers. We have nothing formal to say at this point,” Canadian Council of Churches general secretary Peter Noteboom told The Catholic Register.

“The STCA has served Canada well for 16 years, ensuring that our shared border remains well managed,” said Immigration Minister Marco Mendicino in a release. “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.”

The Canadian Council of Churches, Amnesty International Canada and the Canadian Council for Refugees, who brought the case to the Federal Court last year, have renewed their call for Ottawa to immediately withdraw from the agreement, despite the new ruling.

“Withdrawing from the agreement would not only ensure that Canada meets its Charter and legal obligations, but would also allow people to present themselves in an orderly way at ports of entry, ending the need for irregular crossings,” the organizations said in a joint release.

This is the second time the Canadian Council of Churches, Amnesty and the Canadian Council for Refugees has managed to have the Safe Third Country Agreement struck down by a Federal Court, only to have the decision reversed on appeal. The Federal Court of Canada struck down the agreement in November of 2007, but in 2008 the Federal Court of Appeal ruled that the advocacy organizations should not have had standing to present the case.

The three organizations again are dismayed that the appeal court made its ruling based on legal argumentation rather than evidence.

“The evidence is overwhelming that the U.S. is unsafe for many refugees,” said the joint release after the ruling. “The organizations are particularly disappointed that the court does not engage with the substantial evidence before it that the people sent back to the U.S. under the Safe Third Country Agreement suffer serious rights violations in detention in the U.S. Shockingly, the court even suggests that because refugees are already suffering psychologically, the impact of suffering caused by detention may not need to be considered when determining whether their treatment is ‘cruel and unusual.’ ”

The three refugee advocate organizations also wonder that the appeal court seems to have ignored the treatment of women under the STCA.

“Neither the Federal Court nor the Federal Court of Appeal addressed the evidence that the Safe Third Country Agreement has particularly negative consequences for women because the U.S. does not properly protect people fleeing gender-based persecution,” said the release.