Refugee and human rights advocates are telling the Supreme Court of Canada that a two-nation treaty “contracts out” Canada’s international obligations to asylum seekers coming to the United States, which there is no proper follow-up to ensure Washington is doing the job.
In a written submission, 18-year-old opponents of the Safe Third Country Agreement ask the highest court to declare that the law underpinning the treaty violates Article 7 of the Charter of Rights and Freedoms. guarantee the life, liberty and security of that person.
The Supreme Court is expected to hear oral arguments today over the constitutionality of the agreement, under which Canada and the United States recognize each other as havens to seek protection.
The treaty allows Canada to reject potential refugees from appearing at ports of entry along the Canada-U.S. border on the basis that they must pursue their claim in the United States, their destination country. firstly.
The Canadian government argued in its own summary to the court that returnees have access to fair asylum and detention processes south of the border. “It is not unreasonable to exclude claimants to the United States so that they can claim protection in that country.”
Canadian refugee advocates have long battled the asylum agreement, arguing that the US is not always a safe country for people fleeing persecution.
Several asylum seekers have taken the case to Federal Court along with the Refugee Council of Canada, the Church Council of Canada and Amnesty International, who participated in the proceedings in their capacity. are parties of the public interest.
In each case, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrive at Canada’s official point of entry from the US and seek refugee protection.
They argued in court that by returning ineligible asylum seekers to the United States, Canada put them at risk in the form of detention and other violations of rights.
In her 2020 decision, Federal Court Judge Ann Marie McDonald concluded the Safe Third Country Agreement resulted in ineligible claimants being jailed by US authorities.
The detention and the consequences resulting therefrom are “inconsistent with the spirit and purpose” of the asylum agreement and violate the rights guaranteed by Section 7 of the Charter, she wrote.
“The evidence clearly demonstrates that those who were returned to the United States by Canadian authorities were detained as punishment.”
However, the federal Court of Appeals overturned the decision last year.
“The constitutional error alleged in this case stems from the way regulators and officials are operating the legislative program, not the legislative program itself,” the appeals court said.
“But because the claimants chose not to attack any administrative act, we had neither the ability nor the evidence before evaluating it.”
The Court of Appeals also found the legislative regime to be consistent with the Charter unless the treatment of those sent back to the United States could be proven to be “consequentially shocking.”
In its submission to the Supreme Court, claimants and advocates say that the Court of Appeals “refused to engage with the substantive merits of the case” and adopted a “flawless approach”. highly restrictive for the review of the Charter.”
They argue that the US immigrant detention system has been “widely condemned for egregious violations of minimum international standards” for the detention of asylum seekers.
“This legislative plan effectively contracts Canada’s international obligations to asylum seekers on the premise that the United States will fulfill those obligations for us,” the submission reads. .
While Canada is required by law to ensure this premise remains in effect through ongoing monitoring of U.S. asylum policies and practices, “they have failed to do so.”
By contrast, the government said, at the time of the Federal Court hearing, Canada’s review of the national agreement was “effective, efficient, and thorough” and the information gathered did not reveal a matter of concern. tell.
This Canadian Press report was first published on October 6, 2022.