A court challenge into whether the U.S. remains a safe country for refugees starts Nov.4, 2019 in Toronto. (Photo by THE CANADIAN PRESS)

Court to hear case on whether asylum agreement with U.S. violates charter

OTTAWA — A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement that prohibits people from entering Canada from the U.S. — and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal.

Her attempt to enter Canada came as then newly-elected U.S. President Donald Trump was unveiling a series of changes to the U.S. immigration system, including an attempt to ban immigrants from Muslim countries and lifting stays on deportations to Central American nations.

The measures set off shock waves not just in the U.S. but also in Canada, even among those who don’t work in the immigration field, said Janet Dench, the executive director of the Canadian Council for Refugees, one of the groups challenging the agreement in court.

“Many Canadians … instinctively felt it didn’t make sense for Canada to be hitching its wagon to the United States in this way and be sending people back to the U.S. when they could see there was such a lack of attention to the basic rights,” she said.

While political pressure began building for changes to the deal, the CCR and others also decided to test it in court and worked to find an asylum seeker who had been turned away.

Since the case was launched, restrictions on asylum have tightened even further, including a decision in 2018 by the U.S. attorney general to deny asylum claims based on domestic violence. One of the arguments in the case is that decision effectively leads to discrimination towards refugee applicants on the basis of their gender, which would violate the charter.

But the federal government argues that position, and others taken by the applicants, relate to developments in the U.S. refugee system that don’t apply in the case at hand. The U.S. system still functions, they argue, and the government wants the case dismissed.

“Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year, and is subject to both administrative and judicial checks and balances,” lawyers for the Immigration and Public Safety ministries wrote in their submission to the Federal Court.

“Many of the concerns raised by the applicants have been limited by American courts or are still undergoing legal challenges, have no application to (Safe Third Country Agreement) returnees, and/or do not preclude access to protection.”

The applicants hope the court either suspends the deal or forces it to be amended in such a way that allows those seeking asylum to ask for it.

It doesn’t mean asylum will be granted, said Justin Mohammed, Amnesty International Canada’s human rights, law and policy campaigner. The goal is just for people to have a way to ask.

Some 45,000 people have found a way in the last two years by crossing into Canada from the U.S. between formal border offices to claim asylum.

The subsequent pressure that placed on immigration and social services has made the agreement a political flash point, with New Democrats and Conservatives demanding the agreement be amended or suspended. During the recent election campaign, the Liberals promised they would work with the U.S. to try and “modernize” the deal.

What that means is unclear, Mohammed said. His organization is one of the applicants in the case.

“We have been trying to work with the government and see what could be done in order to alleviate the problems that are created by the Safe Third Country Agreement particularly in the context of the Trump administration policies that they’ve been rolling out,” he said.

“That lack of political appetite is exactly why we had felt compelled to go to the courts.”

It’s not the first time the agreement has been subject to legal scrutiny. In 2007, it was also challenged in Federal Court, and the U.S. was declared not safe for refugees, but the decision was overturned on appeal.

This week’s hearing is expected to run until Friday.

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