Migrants from Somalia cross into Canada illegally from the United States by walking down a train track into the town of Emerson, Man., on Feb.26, 2017. A federal judge has struck down a key agreement on refugees between Canada and the United States. In a ruling today, Federal Court Justice Ann Marie McDonald says elements of the law underpinning the Safe Third Country Agreement violate constitutional guarantees of life, liberty and security.THE CANADIAN PRESS/John Woods

Federal Court’s decision on Safe Third Country Agreement a `cautious victory for refugee rights’: advocates

Judge suspended her decision for six months to give the federal government a chance to respond

By Noushin Ziafati, Local Journalism Initiative Reporter, The Chronicle Herald

Advocates in Nova Scotia say they are “cautiously optimistic” after Canada’s Federal Court recently ruled that the Safe Third Country Agreement between Canada and the United States to be unconstitutional and in violation of the Canadian Charter of Rights and Freedoms.

“It’s a landmark ruling,” said Julie Chamagne, executive director of the Halifax Refugee Clinic. “I’m cautiously optimistic (the federal government) won’t appeal.”

“(It’s) an important, but cautious victory for refugee rights,” said Tina Oh, a member of the advocacy group No One is Illegal – Halifax/K’jipuktuk.

Under the STCA, asylum seekers who try to cross the Canada-U.S. border are required to request refugee protection in the first “safe” country they arrived in, meaning Canadian border officials can turn migrants trying to enter Canada at an official border crossing back to the U.S.

READ MORE: Federal Court declares Canada-U.S. refugee pact unconstitutional

Federal rules STCA invalid, unconstitutional

In a decision delivered Wednesday, Federal Justice Ann Marie McDonald ruled the STCA is invalid and in violation of Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the “right to life, liberty and security of a person,” citing the risk of detention for asylum seekers turned back to the U.S.

McDonald suspended her decision for six months to give the federal government a chance to respond. During this six-month period, the government can choose to suspend the STCA or appeal the decision.

“For six months, asylum seekers are still rejected,” said Oh.

In an email statement, Mary-Liz Power, spokesperson for Public Safety and Emergency Preparedness Minister Bill Blair, said the government is “currently reviewing” the Federal Court’s decision and that the STCA continues to remain in effect over the next six months.

Power noted all foreign nationals making a claim for refugee protection that do not meet the exemptions under the STCA will be directed back to the U.S. in the meantime. Border services officers “will conduct queries in all applicable systems and collect biometric information. The CBSA will also notify US Customs and Border Protection of the direct-back,” she added.

“We are constantly evaluating the situation and considering next steps. Our government will continue to work with health authorities, border officials, provincial and territorial counterparts, municipalities, and our international partners to do what’s best for Canadians,” said Power.

Advocates want `immediate suspension’ of agreement

Oh and Chamagne said it’s too early to tell how the government will respond, but they would like to see the “immediate suspension” of the STCA.

Refugee advocates across Canada, including members of the Halifax Refugee Clinic and No One is Illegal – Halifax/K’jipuktuk, have long called for the federal government to withdraw from the STCA, stating it puts migrants at risk of “cruel and unusual” detention and possible deportation to countries where they could face “dangerous and persecutory conditions.”

Champagne said the STCA is especially concerning amid the COVID-19 pandemic because it may push migrants to enter Canada through irregular border crossings, putting their health and safety as well as that of others at risk.

“Especially during the pandemic, it’s important for people to be able to come documented, to have regular channels of migration and ability to make a refugee claim, ability to quarantine, ability to access public health and to not get sent back to detention,” she said.

Advocates call for better protections for asylum seekers

While Oh and Chamagne welcomed the Federal Court’s decision, they said more needs to be done in Canada to protect asylum seekers and others with precarious status in general.

Oh said asylum seekers and migrant workers are making valuable contributions in Nova Scotia during the pandemic by working in essential positions, including in agriculture and health care, yet they are being treated as “expendable and disposable, just like the treatment of migrants at the border,” pointing to asylum seekers recently seeing their shifts suddenly cancelled at Northwood.

Oh added there are “anti-refugee provisions” in Bill C-97 that are of concern, highlighting a ground that makes a person ineligible to make a refugee claim in Canada if they have done so in another country, which she said “essentially closes the door on so many asylum seekers.”

“We need to see an end to all these policies, including the STCA immediately, we need to see an end to the policies of turning our backs to migrants due to COVID responses, as well as striking down the changes that have been made in Bill C-97,” said Oh.

Since 2017, roughly 58,000 irregular border crossers have made asylum claims in Canada. About 14,500 of those claims have been accepted and 12,000 have been rejected, while 29,600 are pending a decision, according to the Immigration and Refugee Board of Canada.

According to Power, 74 asylum seekers were directed back to the U.S. between March 21 and July 15, 71 of which were irregular asylum seekers. Five asylum seekers were allowed to proceed under the exemptions to the STCA.


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