Toronto court to hear case on whether asylum agreement with U.S. violates charter

Concerns with the Safe Third Country Agreement come as the U.S. tightens its asylum rules and regulations

A girl originally from Congo and her family who had been living in Portland, Maine, approach an unofficial border crossing with Canada, heading down Roxham Road in Champlain, N.Y., on Aug. 7, 2017. A long-awaited legal look into whether the U.S. remains a safe country for refugees begins Monday in Federal Court in Toronto. (Charles Krupa/The Associated Press)

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, which 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 both are safe places, so those seeking sanctuary should apply in the first country where they arrive.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for asylum seekers.

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 immigration system, including an attempt to ban immigrants from Muslim countries and lifting stays on deportations to Central American nations.

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, 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.”

Ottawa wants case dismissed

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. MORE

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Trans Mountain pipeline expansion faces new setback as Indigenous opponents score ‘huge win’ in court

VANCOUVER—In the latest setback for the Trans Mountain expansion, the Federal Court of Appeal has approved six new Indigenous legal challenges to the project, once again raising questions about the fate of the pipeline.

The Crown corporation that now owns Trans Mountain said planning and construction will move forward in the meantime, but lawyer and resource development strategist Bill Gallagher said he wouldn’t expect to see “any shovels in the ground any time soon.”

“This to me is looking like dead pipeline walking,” Gallagher said, calling the court’s decision a “huge win for First Nations.”

The decision also ensures the Liberal government will be saddled with the legal uncertainty around the project — which it spent $4.5 billion to purchase, alongside the existing pipeline — through this October’s federal election.

While the court gave the go-ahead Wednesday to half a dozen First Nations to continue their legal efforts to halt the project, it limited the challenges to the issue of the federal government’s consultation with Indigenous Peoples, particularly its latest round.

The court denied six other applications — from two other First Nations, a coalition of youth climate activists, the City of Vancouver and two environmental organizations — leave to proceed.

A lawyer representing the two environmental organizations said they may appeal the decision to Canada’s highest court. MORE

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