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

The Great Bear Snowshed on the Coquihalla Highway (Highway 5) in British Columbia. Truck driver Roy McCormack testified in BC Supreme Court in Chilliwack on Feb. 25, 2021 that his brakes started smoking in about this location, and soon after he lost all braking, which led to a multi-vehicle crash further down the road on Aug. 5, 2016. (GoogleMaps)
Truck driver charged with criminal negligence in Coquihalla crash is accused of ignoring smoking brakes

Just before crashing the smoking truck was seen entering Zopkios brake check and leaving shortly after

The Hope local health area saw six new cases of COVID-19 from Feb. 14 to 20. (Graphic/BCCDC)
Hope area sees six more COVID-19 cases

The running average for 2021 is about five cases per week

(File Photo)
Crash causes delays on Coquihalla southbound, travel advisory issued

A vehicle incident between Merrit and Hope has caused major delays heading south

Kathleen Gros will be helping local creatives explore the intersection of words and pictures through comic books in an upcoming online workshop.
Vancouver graphic novelist to share skills in online workshop with Agassiz Library

Kathleen Gros will be leading the Magical World of Words and Pictures workshop on March 6

The last three wild northern spotted owls live near the Spuzzum Watershed outside of Hope. The province recently ordered a halt to logging for at least a year to give the owls a chance to survive.  (Photo/Jared Hobbs)
Logging halted in northern spotted owl habitat near Hope

Halt will last at least a year, gives time to formulate survival plan for Northern Spotted Owl

Provincial health officer Dr. Bonnie Henry updates B.C.’s COVID-19 situation at the B.C. legislature. (B.C. government)
B.C. reports 10 additional deaths, 395 new COVID-19 cases

The majority of new coronavirus infections were in the Fraser Health region

A new survey has found that virtual visits are British Columbian’s preferred way to see the doctor amid the COVID-19 pandemic. (Unsplash)
Majority of British Columbians now prefer routine virtual doctor’s visits: study

More than 82% feel virtual health options reduce wait times, 64% think they lead to better health

Captain and Maria, a pair of big and affectionate akbash dogs, must be adopted together because they are so closely bonded. (SPCA image)
Shuswap SPCA seeks forever home for inseparable Akbash dogs

A fundraiser to help medical expenses for Captain and Maria earned over 10 times its goal

Cory Mills, Eric Blackmore and A.J. Jensen, all 20, drown in the Sooke River in February 2020. (Contributed photos)
Coroner confirms ‘puddle jumping’ in 2020 drowning deaths of 3 B.C. men

Cory Mills, Eric Blackmore and A.J. Jensen pulled into raging river driving through nearby flooding

Castlegar doctor Megan Taylor contracted COVID-19 in November. This photo was taken before the pandemic. Photo: Submitted
Kootenay doctor shares experience contracting COVID-19

Castlegar doctor shares her COVID experience

Shaelene Keeler Bell. (Facebook)
Candlelight vigil planned for Chilliwack mother missing for four weeks

Virtual event to ‘spread some light’ for 23-year-old Shaelene Bell of Chilliwack

Ashley Paxman, 29, is in the ICU after being struck by a vehicle along Highway 97 Feb. 18, 2021. She remains in critical condition. (GoFundMe)
Okanagan woman in ICU with broken bones in face after being struck by car

She remains in serious condition following Feb. 18 incident

Vancouver International Women in Film Festival kicks off March 5.
Women in Film Festival features two B.C. filmmakers

The 16th annual festival kicks off March 5, 2021

The booklet roots present day activism in the history of racist policies, arguing the history must be acknowledged in order to change. (CCPA)
New resource dives into 150 years of racist policy in B.C.

Racist history must be acknowledged in order to change, authors say

Most Read