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

Reggie went missing in Duncan’s McAdam Park on Jan. 3 and owner Brittny Bukva is hoping for his safe return. (Submitted)
Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

Have you seen Reggie? Dog went missing in Duncan’s McAdam Park

Workers prepare to take down 28 large trees on private property on Mill Bay Road this week after they were intentionally poisoned almost two years ago. (Submitted photo)
Still no charges over poisoning of trees in Mill Bay

It’s been almost two years since incident involving 28 large trees

Cory Harrington has been found. (Submitted photo)
Missing Lake Cowichan man located

Cory Harrington was last seen on Dec. 11

Alistair MacGregor will have Pharmacare on his mind for a Thursday, Jan. 21 virtual town hall. (Photo by Lexi Bainas/Cowichan Valley Citizen)
Cowichan MP hosting town hall on universal pharmacare

“Pharmacare for All: A Prescription for Your Wallet”

An elk got his antlers caught up in a zip line in Youbou over the weekend. (Conservation Officer Service Photo)
Elk rescued from zip line in Youbou

Officials urge people to manage items on their property that can hurt animals

B.C. Representative for Children and Youth Jennifer Charlesworth (Black Press files)
B.C. watchdog says mentally ill children and youth retraumatized in hospital

The number of children held under the Mental Health Act has increased an alarming 162 per cent in past decade

A new video from NCCIH and BC Northern Health titled ‘Healing in Pandemic Times: Indigenous Peoples, Stigma and COVID-19’ was animated by Joanne Gervais. (Photo Provided By: NCCIH Archives)
VIDEO: Stigma against Indigenous people is a ‘social sickness’

A new short animated video is aiming to educate the public on the stigmatization

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Nanaimo RCMP are investigating after a threat was made at Woodgrove Centre on Tuesday, Jan. 19. (News Bulletin file photo)
Threat directed at Nanaimo mall, RCMP investigating

Police have searched areas of Woodgrove Centre accessible to shoppers and have deemed it safe

A pinniped was attacked by an unseen predator off the shores of Dallas Road Monday night. (Courtesy of Steffani Cameron)
VIDEO: Seal hunting, not being hunted in video shot off Victoria waterfront

Victoria woman captures footage of pinniped activity off Dallas Road

Prime Minister Justin Trudeau provides an update on the COVID-19 pandemic from Rideau Cottage in Ottawa on Tuesday, Jan. 11, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Prime Minister Justin Trudeau provides an update on the COVID-19 pandemic from Rideau Cottage in Ottawa on Tuesday, Jan. 11, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Trudeau vows to keep up the fight to sway U.S. on merits of Keystone XL pipeline

Canada’s pitch to the Biden team has framed Keystone XL as a more environmentally friendly project than original

The British Columbia Hotel Association (BCHA) sent out a sharply worded release late last week, in which it noted that the Tourism Industry Association of BC recently obtained a ‘legal opinion’ on the matter (Alex Passini photo)
Hotel associations push back against any potential ban on inter-provincial, non-essential travel restrictions

B.C. Premier John Horgan is seeking legal advice on banning non-essential travel

JaHyung Lee, “Canada’s oldest senior” at 110 years old, received his first dose of the COVID-19 vaccine on Thursday, Jan. 14, 2021. He lives at Amenida Seniors Community in Newton. (Submitted photo: Amenida Seniors Community)
COVID rapid tests in long-term care key during vaccine rollout: B.C. care providers

‘Getting kits into the hands of care providers should be a top priority,’ says former Health Minister

Island Health chief medical officer Dr. Richard Stanwick receives a first dose of Pfizer vaccine, Dec. 22, 2020. (B.C. government)
B.C. turns to second doses of COVID-19 vaccine as supplies slow

Pfizer shipments down until February, to be made up in March

Most Read