The judges heard arguments in the final days of February as to whether they should overturn the ruling by Justice Ann Marie McDonald that the Canada-U.S. deal on asylum seekers violates Section 7 of the Charter of Rights and Freedoms, which guarantees life, liberty and security of the person to everyone on Canadian soil.
Government of Canada lawyers tussled with lawyers representing the Canadian Council of Churches, Amnesty International and the Canadian Council for Refugees for two days over what exactly shocks the conscience, how wide the gap is between the theory and practice of U.S. immigration law and the purpose of the Charter of Rights and Freedoms. They even wondered aloud whether the Joe Biden presidency could make their problems disappear.
The Federal Court of Appeal justices have reserved their judgment.
Government lawyer Martin Anderson defended the Safe Third Country Agreement between Canada and the U.S. which requires refugees to claim asylum in the first of the two countries in which they land. The arrangement has been in place since 2004 to prevent “asylum shopping.” The deal only applies to refugees who arrive at official crossings at the land border between Canada and the United States.
Anderson argued that McDonald had based her decision on “an erroneous understanding of U.S. asylum law.” While conceding that many would-be refugees are taken into detention when they are turned away at the border, Anderson insisted that routine U.S. incarceration of would-be refugees is “discretionary and not automatic.”
Government lawyer David Knapp asked the judges to take note of the American election, and the “evolution of the facts in the United States,” he said.
“This case is about the reasonably foreseeable consequences of the operation of Canadian law and Canadian actions under that law,” countered lawyer Jared Will on behalf of the three refugee advocacy organizations.
The problems with the Safe Third Country Agreement were identified and litigated long before the Trump presidency, Will said.
“U.S. detention of returned refugee claimants violates relevant norms of international law,” said respondent lawyer Leigh Salzberg in arguing that women are particularly at risk in the U.S. asylum system.