The clock is ticking for Canada’s withdrawal from an agreement with the United States on cross-border asylum-seekers. A recent Canadian court ruling that the Safe Third Country Agreement is unlawful has been suspended for six months, prompting debate on what the next steps should be.
In a 60-page ruling, Justice Ann Marie McDonald of the Federal Court of Canada said the Safe Third Country Agreement violated the Canadian Charter of Rights and Freedoms in failing to guarantee “the right to life, liberty and the security of the person.”
The 16-year-old agreement stipulates that any asylum-seeker entering Canada or the United States must file a petition in the first country of arrival. As such, people who flee a third country and attempt to cross a border checkpoint from the United States into Canada, or vice versa, are returned.
Ethiopia native
McDonald found that refugee claimants returned to the United States are “detained as a penalty.” She referred to one claimant, Nadir Mustefa, originally from Ethiopia, who after being returned to the United States from Canada alleged she was held in solitary confinement for a week and fed pork despite telling U.S. prison guards she is Muslim and could not eat that type of food.
Defending the bilateral accord, the Canadian government argued that those being returned from Canada to the U.S. have access to a fair detention review — an argument McDonald rejected.
The decision was suspended for six months to give the Canadian government a chance to respond, possibly with new legislation or a type of bilateral agreement with the United States. The decision can also be appealed.
Peter Kent, opposition immigration critic for the Conservative Party, said the sour relationship between Canadian Prime Minister Justin Trudeau and U.S. President Donald Trump on immigration issues would make amending or replacing the law difficult. He said he hoped Trudeau would appeal the decision, but only to ask for more time to change the law.
“I think it's simply unrealistic to think that anything meaningful could be done within six months to correct what the judge found to be unconstitutional elements of the agreement,” Kent said.
One view: Scrap the agreement
One plaintiff in the case who successfully fought for the decision is Justin Muhammed, the human rights law and policy campaigner at Amnesty International Canada.
He said the Canadian government should not appeal the decision, but immediately discontinue the agreement itself.
“And so that's what we are presently encouraging the government to do, which is to suspend the application of the Safe Third Country Agreement, allow these claimants to make their claims in Canada and don't appeal the ruling,” he said.
Peter Noteboom, general secretary for the Canadian Council of Churches, which along with Amnesty International was a plaintiff in the case, said Trudeau has to give full protection of Canadian laws to all refugees that travel through the United States into Canada. It's not dependent upon citizenship, he said: "If you're in the territory of Canada, that's the law that that applies.”
In a written statement, Canadian Minister of Public Safety Bill Blair said the government had yet to decide the next course of action.
The Safe Third Country Agreement applies to asylum-seekers only at recognized border points. Anyone who illegally crosses the 8,891-kilometer Canadian-U.S. border is eligible for asylum consideration.
