The Supreme Court of Canada has agreed to review a lower court ruling that affirmed the constitutionality of a pact between Ottawa and Washington on asylum seekers.
Under the 17-year-old Safe Third Country Agreement, Canada and the United States recognize each other as safe havens where people can seek protection.
This means that Canada can turn back potential refugees who present themselves at land ports of entry along the Canada-U.S. Border on the grounds that they must submit their claims in the United States, the country where they first arrived. time.
Canadian refugee advocates have strongly opposed the deal, arguing that the United States is not always a safe country for people fleeing persecution.
Several asylum seekers took the case to Federal 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 an official Canadian port of entry from the United States and claimed asylum.
They argued in court that by returning ineligible asylum seekers to the United States, Canada puts them at risk in the form of detention and other rights violations.
In her decision last year, Federal Court Judge Ann Marie McDonald found that the Safe Third Country Agreement results in the imprisonment of ineligible claimants by US authorities.
The detention and its consequences are “incompatible with the spirit and purpose” of the refugee agreement and violate the rights guaranteed by section 7 of the Charter, she wrote.
“The evidence clearly shows that those returned to the United States by Canadian officials are being held as a punishment. “
However, the Federal Court of Appeal overturned the decision earlier this year.
“The constitutional flaw alleged in this case arises from the way administrators and officials manage the legislative scheme, and not the legislative scheme itself,” the Court of Appeal said.
“The adverse effects, if any, suffered by those returned to the United States cannot be attributed to the legal regime as a whole. They would rather be attributable to the planned examinations […] and related administrative acts. However, as the applicants did not appeal against an administrative act, we do not have the possibility of evaluating such a claim, nor the evidence file to do so ”, one can also read in the decision of the court. .
In response to the Federal Court, which found that the treatment of those returned to the United States “shocks the conscience”, the higher court ruled that “the file contains elements relating to substandard treatment, but nothing that” shocks the consciousness””.
In their application to the Supreme Court, the plaintiffs and their lawyers said the ruling had the effect of isolating the safe third country regime from constitutional review “and erecting major obstacles to constitutional scrutiny of federal law. in general “.
Federal lawyers have argued, however, that the Court of Appeal correctly observed that the threshold for “conscience shocks” is high.
“The practices which have been found to be contrary to this threshold include torture, stoning, mutilation and the death penalty”, indicates the government communication.
Deportation to the United States to make a refugee claim under conditions similar to those in Canada “is not such a practice, the American system offering full participation rights, multiple avenues of appeal and a risk of non-compulsory detention ”.
As usual, the Supreme Court gave no reason on Thursday for agreeing to hear the case.
The three groups behind the lawsuit hailed the move and called on the federal government to suspend the binational refugee agreement.
“None of the previous court rulings – or the upcoming Supreme Court ruling – prevents the government from taking immediate action to end this nefarious deal,” the groups said.
Because the agreement only applies to official border posts, many refugees have been forced to cross the border between ports of entry, sometimes under perilous conditions, they added.
“Withdrawing from the agreement would not only ensure that Canada complies with its charter and legal obligations, it would also allow people to present themselves in an orderly fashion at points of entry, which would end the need for irregular crossings. “