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    • Supreme Court to review constitutionality of Safe Third Country refugee pact

    The end of Roxham Road where thousands of asylum seekers have crossed is seen in Hemmingford, Que., on March 20, 2020. (Ryan Remiorz / THE CANADIAN PRESS) The end of Roxham Road where thousands of asylum seekers have crossed is seen in Hemmingford, Que., on March 20, 2020. (Ryan Remiorz / THE CANADIAN PRESS)
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    OTTAWA -

    Refugee and human-rights advocates who oppose a pact between Ottawa and Washington on asylum seekers are welcoming to examine whether the agreement violates the fundamental rights of claimants.

    The top court agreed Thursday to hear arguments about the constitutionality of the 17-year-old Safe Third Country Agreement, under which Canada and the United States recognize each other as havens to seek protection.

    The agreement allows Canada to turn back potential refugees who show up at land ports of entry along the Canada-U.S. border on the basis they must pursue their claims in the U.S., the country where they first arrived.

    Canadian refugee advocates have steadfastly fought the asylum agreement, arguing the U.S. is not always a safe country for people fleeing persecution.

    Several refugee claimants took the case to Federal Court along with the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, who participated in the proceedings as public interest parties.

    In each case, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at an official Canadian entry point from the U.S. and sought refugee protection.

    They argued in court that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention and other rights violations.

    In her decision last year, Federal Court Justice Ann Marie McDonald concluded the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.

    Detention and the consequences flowing from it are "inconsistent with the spirit and objective" of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter, she wrote.

    "The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty."

    However, the Federal Court of Appeal overturned the decision earlier this year.

    "The alleged constitutional defect in this case stems from how administrators and officials are operating the legislative scheme, not the legislative scheme itself," the Appeal Court said.

    "But because the claimants chose not to attack any administrative conduct, we have neither the ability nor the evidence before us to assess it."

    The Court of Appeal also found the legislative regime consistent with the charter unless the treatment experienced by those sent back to the U.S. could be shown to "shock the conscience."

    In their application to the Supreme Court, the claimants and their advocates said the effect of the decision is to insulate the Safe Third Country regime from constitutional review "and to erect major obstacles to constitutional scrutiny of federal legislation generally."

    Federal lawyers, however, argued the Appeal Court correctly observed that the "shocks the conscience" threshold is high.

    "Practices that have been found to violate that threshold include torture, stoning, mutilation and the death penalty," the government submission said.

    Removal to the U.S. to make an asylum claim under conditions similar to those in Canada "is not such a practice, with the U.S. system providing full participatory rights, multiple avenues of appeal, and a non-mandatory risk of detention."

    As usual, the Supreme Court gave no reasons Thursday for agreeing to hear the case.

    The three groups behind the court action welcomed the move and called on the federal government to suspend the binational refugee agreement.

    "None of the previous court rulings -- or the upcoming Supreme Court decision -- prevent the government from taking action immediately to end this harmful agreement," the groups said.

    Because the agreement applies only at official border crossings, many refugees have been forced to cross the border in between ports of entry, sometimes in perilous conditions, they added.

    "Withdrawing from the agreement would not only ensure that Canada meets its charter and legal obligations, but would also allow people to present themselves in an orderly way at ports of entry, ending the need for irregular crossings."

    This report by The Canadian Press was first published Dec. 16, 2021

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