A family, claiming to be from Columbia, is arrested by RCMP officers as they cross the border into Canada from the United States as asylum seekers, on April 18, 2018. near Champlain, N.Y. A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto. THE CANADIAN PRESS/Paul Chiasson

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

The U.S. has tightened its asylum rules and regulations in recent years

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.

READ MORE: Asylum claims dipped last month but numbers remain up over last year

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.

Stephanie Levitz, The Canadian Press


Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Local Skeena candidates for the Oct. 24 snap election

Current BC Liberal MLA Ellis Ross will be running again, as will Nicole Halbauer for BC NDP

BC Timber Sales’ operations on the North Island and Central Coast to be audited

The Forest Practices Board randomly chose the region to check for compliance to legislation

Sam Lindsay Aquatic Centre reopening October 5

The pool facility will have COVID-19 restrictions and protocols in place for patrons

Unofficial holidays: Here’s what people are celebrating for the week of Sept. 20 to 26

Rabbit Day, Hobbit Day and One-Hit Wonder Day are all coming up this week

In Our Valley: Adam Ferreira

Adam Ferreira is moving up in the hockey world, and he’s excited to see where it leads

COVID-19: 4 more deaths, 366 new cases in B.C. since Friday

A total of 8,208 people in B.C. have tested positive for COVID-19 since January

VIDEO: Tickets now available for the Second Annual Northern View Tyee Fishing Derby in Prince Rupert

Four great locations in Prince Rupert and Port Edward to buy your tickets

Group wants Parliament, courts to hold social media to same standard as publishers

Daniel Bernhard made the comments shortly after Friends of Canadian Broadcasting released a research paper

B.C.’s Chase Claypool catches first NFL touchdown pass

Abbotsford grad establishes new record for longest scrimmage TD by a Canadian

B.C. has highest number of active COVID-19 cases per capita, federal data shows

B.C. currently has 1,803 active cases after weeks of COVID-19 spikes in the province

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

181 days gone: Family continues to look for man last seen in RCMP custody 6 months ago

Brandon Sakebow’s last known location was leaving Mission RCMP cell, police say; family has doubts

B.C. unveils new cannabis sales programs to help small, Indigenous growers

Government did not say how it will define small producers, but says nurseries will be included in the policy

Most Read