Refugee Pact Survives Court Challenge

Jim Brown, Globe and Mail (Toronto), February 5, 2009

A controversial refugee pact that allows Canada to turn back would-be asylum seekers at the U.S. border has survived a court challenge.

In a decision released without comment Thursday, the Supreme Court of Canada denied permission to human-rights groups to argue their case against the so-called “Safe Third Country” agreement.

The ruling effectively upholds the 2004 deal, under which Canadian authorities can bar potential refugees at the border and tell them to seek asylum in the United States if they fear persecution in their homelands.

The Americans can do the same with refugee claimants trying to enter their country from Canada, but most of the controversy has centred on traffic in the other direction.

Critics say people turned away from Canada often don’t find safe haven when they return to the U.S.–and can face deportation to countries that practise torture or other abuses.

Janet Dench, executive director of the Canadian Council for Refugees, said she was “in as state of shock” at the Supreme Court’s refusal to review the issue.

“The courts don’t seem to provide an avenue for refugees to have their basic rights protected,” she said.

Immigration Minister Jason Kenney’s office painted a drastically different picture.

“This is an unmitigated victory for the rule of law,” said Alykhan Velshi, a spokesman for the minister.

He maintained the pact offers a “full and fair process” for refugee claimants and ensures cross-border co-operation to “handle claims in an efficient manner (and) reduce abuse of the system.”

Refugee advocates estimate that hundreds of potential claimants have been bared from entering Canada under the agreement.

At least one man, a Honduran whose case was cited during the legal proceedings, was subsequently deported from the U.S. and was killed in his native country.

The Canadian Council for Refugees, Canadian Council of Churches and Amnesty International first went to court in 2005 to challenge the pact.

They argued that Ottawa violated domestic and international law in crafting the deal, because Washington doesn’t fully respect United Nations conventions designed to safeguard refugees and prevent their removal to countries where they may be in danger.

Justice Michael Phelan of Federal Court agreed, in a 2007 decision, that regulations enacted by the former Liberal government to give legal effect to the deal should be declared invalid. Judge Phelan concluded the federal cabinet had exceeded its authority and breached the Charter of Rights.

But that decision was overturned the next year by the Federal Court of Appeal, which ruled Judge Phelan had misinterpreted the law. The three-judge appeal panel unanimously held that cabinet had broad latitude to regulate refugee affairs, as long as there was no evidence the government was acting in bad faith to deliberately circumvent human rights.

The refugee pact was part of wider “Smart Border” negotiations undertaken with the U.S. in the wake of the 9/11 attacks to ensure border security.

The genesis of the Safe Third Country concept dates back to the late 1980s, when officials first became concerned about “asylum shopping” by refugees filing multiple claims in different countries.

The ostensible purpose of the 2004 deal was to ensure people filed for refugee status in the first safe country in which they arrived.

Canadian critics say the practical effect has been to subject many claimants to the more restrictive U.S. rules on refugee status and increase the likelihood of their ultimate deportation.

They also say the Canadian regulations are discriminatory because they apply only at land border points with the U.S., leaving those who can manage to find a direct air flight to Canada free to file in this country.

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