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

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

Alberta’s chief medical officer of health, Dr. Deena Hinshaw, confirmed eight additional virus-deaths Monday afternoon including one in central zone. (Photo by Chris Schwarz/Government of Alberta)
New record: Red Deer at 236 active COVID cases

One more death in central zone reported

Executive Director and Co-Founder of Rock Soup Craig Haavalsen is sleeping in a tent outside Rock Soup’s location until the Go Fund Me for Rock Soup raises $10,000. Shaela Dansereau/ Pipestone Flyer.
Putting normalcy into asking for help: New non-profit sets up in Wetaskiwin

Rock Soup non-profit is a new non-secular Food Bank putting down roots in Wetaskiwin.

file photo
County of Wetaskiwin Land Use Bylaw amendments approved

Ammendments approved by Wetaskiwin County Council at Nov. 24, 2020 Council meeting.

City of Wetaskiwin kicks off “Light Up Wetaskiwin” with light display at Wetaskiwin City Hall. Shaela Dansereau/ Pipestone Flyer.
Making spirits ‘bright’: Light Up Wetaskiwin contest kicks off

Up to $3000 in cash prizes available to the top 11 decorated homes and businesses.

Alberta had 1,571 active COVID-19 cases on Tuesday. THE CANADIAN PRESS
Alberta’s central zone now has 1,101 active COVID-19 cases

Provincial death toll has risen by nine

Idyllic winter scenes are part of the atmosphere of the holiday season, and are depicted in many seasonal movies. How much do you know about holiday movies? Put your knowledge to the test. (Pixabay.com)
QUIZ: Test your knowledge of holiday movies and television specials

The festive season is a time for relaxing and enjoying some seasonal favourites

Fossil finds at Mt. Stephen. (Photo: Sarah Fuller/Parks Canada)
Extreme hiking, time travel and science converge in the Burgess Shale

Climb high in the alpine and trace your family tree back millions of years – to our ocean ancestors

Deputy Prime Minister and Minister of Finance Chrystia Freeland listens to a question from a reporter on the phone during a news conference in Ottawa, Monday, Nov. 30, 2020. THE CANADIAN PRESS/Adrian Wyld
Spending too little worse than spending too much, Freeland says as Canada’s deficit tops $381B

‘The risk of providing too little support now outweighs that of providing too much’

Lawyer Devon Page, Ecojustice Canada’s executive director, pauses during a news conference in Vancouver on Wed., Sept. 26, 2012. The environmental law group has lost its bid to pause Alberta’s inquiry into where critics of its oil and gas industry get their funding. Ecojustice sought an injunction this summer to suspend the inquiry, headed by forensic accountant Steve Allan, until there is a decision on whether it’s legal. nbsp;THE CANADIAN PRESS/Darryl Dyck
Judge tosses application to pause Alberta inquiry into funding of oil and gas foes

Ecojustice sought an injunction in the summer to suspend the inquiry

Janelle Robinson owns and operates Spirit’s Respite Ranch near Stettler. The Ranch, just north of Stettler, is an animal therapy ranch that helps those with special needs and conditions ranging from PTSD to anxiety. Mark Weber/Stettler Independent
Spirit’s Respite Ranch near Stettler provides support through animal interaction

‘I also come from a family of doers - if something that is needed isn’t there, you just figure it out’

A pedestrian makes their way through the snow in downtown Ottawa on Wednesday, Nov. 25, 2020. THE CANADIAN PRESS/Sean Kilpatrick
Wild winter, drastic swings in store for Canada this year: Weather Network

In British Columbia and the Prairies, forecasters are calling for above-average snowfall levels

NDP Leader John Horgan, left, speaks as local candidate Ravi Kahlon listens during a campaign stop at Kahlon’s home in North Delta, B.C., on April 18, 2017. THE CANADIAN PRESS/Darryl Dyck
A B.C. Ambulance Service paramedic wearing a face mask to curb the spread of COVID-19 moves a stretcher outside an ambulance at Royal Columbia Hospital, in New Westminster, B.C., on Sunday, November 29, 2020. THE CANADIAN PRESS/Darryl Dyck
Top doctor urges Canadians to limit gatherings as ‘deeply concerning’ outbreaks continue

Canada’s active cases currently stand at 63,835, compared to 53,907 a week prior

A Canadian Pacific freight train travels around Morant’s Curve near Lake Louise, Alta., on Monday, Dec. 1, 2014. A study looking at 646 wildlife deaths along the railway tracks in Banff and Yoho national parks in Alberta and British Columbia has found that train speed is one of the biggest factors. THE CANADIAN PRESS/Frank Gunn
Study finds train speed a top factor in wildlife deaths in Banff, Yoho national parks

Research concludes effective mitigation could address train speed and ability of wildlife to see trains

Most Read