Justice David Stratas sided with the federal government in granting a stay on a July Federal Court ruling that declared the Safe Third Country Agreement with the United States unconstitutional.
“Obviously we’re very disappointed,” said Janet Dench, executive director of the Canadian Council for Refugees. “We don’t feel it (the ruling) reflects the atrocious conditions faced in detention by people sent back to the United States.”
Detention of refugees bounced back from Canada’s border is routine in the U.S., said Alex Vernon, University of Detroit Mercy law professor specializing in immigration law. The arbitrariness and dysfunction of the U.S. refugee determination system is “plain for anybody who witnesses the system up close,” Vernon told The Catholic Register.
Keeping the Safe Third Country rules in place means poor and traumatized refugees will pay the price, said Diana Gallego before Stratas ruled.
“We strongly believe that the United States is not a safe place for people who are seeking protection right now,” said Gallego, associate director of the FCJ Refugee Centre in Toronto. “We know the families — women who are fleeing domestic violence, youth who are fleeing gang violence.”
In July the court ruled that the United States was not a safe alternative for refugees and that conditions in U.S. immigration detention “shock the conscience.”
“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” Justice Ann Marie McDonald wrote in her July ruling.
McDonald ruled that asylum seekers at the border are covered by the Charter of Rights and Freedoms and that sending refugees back to detention in the American refugee system makes Canada complicit in the treatment they meet there. She gave the government six months to remedy the situation, a deadline that was coming up in mid-January. Ottawa sought a stay on the court’s ruling until its appeal is heard in late February or March. If the government loses that appeal it is expected to take the case to the Supreme Court.
“I think the Canadian government is trying to wait it out now,” said Vernon, a Canadian who teaches and practices law in the U.S. “If (presidential candidate Joe) Biden wins (the Nov. 3 U.S. election), they’ll try to say it’s all different now.”
Government lawyers argued that complying with the Federal Court ruling would throw the border into chaos and invite a flood of refugees. There are currently about 90,000 refugees in the country awaiting a hearing or a ruling on their status.
Families the FCJ Refugee Centre has helped since their arrival in Canada went through immigration detention and family separation in the United States, including a Salvadorean family now dealing with the consequences of their imprisonment, Gallego said.
“The mother and little five-year-old daughter were put in something they called the freezer,” said Gallego.
The cells where women and children were housed were so cold that many became ill. Not only were the conditions they faced below international standards for prisons, but they were held in a separate facility from her young teenaged son. The family was on the run from a gang in El Salvador that wanted to recruit the boy for its violent, dangerous drug trafficking business.
The Trump administration has made domestic violence and gang recruitment invalid grounds for making an asylum claim in the United States.
“This is a reality that these families are living. They know that if they go to the United States they will be rejected. That’s why they are looking to Canada,” said Gallego
Now in school in Toronto, the daughter has gone mute and suffers nightmares, Gallego said. She’s being treated for post-traumatic stress disorder to help with her memories of detention in the United States.
“We feel that the court’s ruling should stand. The legislation should no longer be in effect,” said Canadian Council of Churches general secretary Peter Noteboom before Stratas’ ruling. “It would have been good if the government had taken action and remedied this situation via Parliament. Instead, they’ve asked for a stay and tried to drag out the court proceedings.”
The Canadian Council of Churches brought the case to the federal court along with Amnesty International Canada and the Canadian Council for Refugees. It was the second time these three organizations have obtained a judgment that the Safe Third Country Agreement violates the Constitution. A 2007 ruling against the agreement was overturned on a technicality.
Given the low numbers of travellers during COVID-19, the idea that the border will be overwhelmed with asylum seekers seems unlikely, said the organizations arguing to uphold the July ruling. Between April and August there were fewer than 130 asylum seekers who crossed the border at points in between official border posts, down from 7,600 for the same period in 2019.