In a surprise ruling the Federal Court of Canada has overturned the “Canada United States Safe Third Country Agreement” in a judgment issued on November 29, 2007.

In a 124-page decision Mr. Justice Michael Phelan ruled that the Safe Third Country Agreement, which came into effect on Dec. 29, 2004 and regulated refugee movement between Canada and the U.S., violates refugee rights and that the United States did not meet the conditions required to be considered a “Safe Country” under the terms of the Agreement.

The Agreement was also held to be contrary to the Charter of Rights and Freedoms. “The interest at stake is highly important to an individual’s life, safety and dignity,” wrote Justice Phelan.

The Judge stated, “I would therefore conclude that the designation of the U.S. as a safe third country leads to a discriminatory result, in that it has a much more severe impact on persons who fall into the areas where the U.S. is not compliant with the Refugee Convention or CAT (Convention Against Torture), as well as discriminating and exposing such people to risk based solely on the method of arrival in Canada.”

“For the reasons outlined in this judgment, the United States’ policies and practices do not meet the conditions set down for authorizing Canada to enter into a Safe Third Country Agreement (STCA),” Justice Phelan stated.

“The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture prohibition (the Maher Arar case being one example.) Further, the STCA does not comply with the relevant provisions of the Charter.”

The court ruled that a one-year deadline to file refugee claims in the U.S. was inconsistent with the international conventions because it increased the risk claimants would be sent back to countries where they faced danger or torture.

Justice Phelan also noted that the U.S. definition of terrorist activities can include those who never had any intention of contributing to terrorism.

“It is difficult to imagine how the governor in council could have reasonably concluded that the U.S. complies with the Refugee Convention when the law allows the exclusion of claimants who involuntarily provided support to terrorist groups. The terrorist exclusions are extremely harsh and cast a wide net which will catch many who never posed a threat. In returning claimants to the U.S. under these circumstances, the weight of the evidence is that Canada is exposing refugees to a serious risk of refoulement (return to danger) and torture which is contrary to the applicable articles of the Refugee Convention and the Convention Against Torture.”

In his ruling Justice Phelan said concerns over the American authorities’ use of expedited removals and use of detention, combined with concerns over the U.S.’s rigid application of the one-year bar to refugee claims, the provisions governing security issues and terrorism based on a lower standard, all called into question whether the U.S. is safe for asylum seekers and met the requirements of the Safe Third Country Agreement.

The Canadian Government also ignored a section in the regulations that required the government to conduct reviews of the Agreement and to assess the conditions for refugee claimants in the United States. Justice Phelan noted that the minister has not established a review process as required under the law.

This ruling of the Federal Court will not immediately change the restrictions on the right of entry of refugee claimants coming to Canada from the United States. The Agreement will continue to apply until the issue is finally decided by the Federal Court. The parties have until January 14, 2008 to make final arguments.

It is very likely that the Government of Canada’s legal representatives will submit a question for certification so that the decision can be appealed to the Federal Court of Appeal.

The ruling came about after the Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International and John Doe, a failed refugee claimant from Colombia, went to the Federal Court for a ruling on the legality of the Agreement. They argued that the Agreement violated the rights of refugee claimants and that the United States did not comply with the legal requirements to protect refugees to qualify as a “safe third country.”

The Safe Third Country Agreement closed the border to the majority of refugee claimants who came through the United States and wanted to make a claim for protection in Canada. The agreement required that all refugee claimants who did not meet the limited exclusion provisions set out in the Agreement (primarily that they have a close family relative in Canada or were stateless) were denied the right to make a refugee claim in Canada. These refugees were required to make a claim for asylum in the United Sates. Similarly most refugees who entered Canada were required to make a claim in Canada and not in the United States.

The Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International and John Doe, in launching this court challenge, argued “that this approach would be acceptable if the U.S. asylum system met recognized international standards for the protection of human rights, including refugee rights, but it did not.”

Alex Neve, Secretary General of Amnesty International Canada, said, “In Canada, in the United States and around the world, refugees and refugee claimants are among the most vulnerable members of any society and regularly experience harsh treatment and systematic disregard for their most basic human rights.”

The representative for Amnesty International also commented, “This decision is an eloquent reaffirmation of how important it is that governments scrupulously ensure the safety of refugees and uphold the full range of their human rights. This is a message that will and must be heard around the world.”

The three organizations that initiated the court challenge called on the Canadian and U.S. governments to immediately suspend the operation of the Safe Third Country Agreement.

A spokesperson for Canadian Citizenship and Immigration Minister Diane Finley said the Safe Third Country Agreement is still in effect and the government was reviewing its options.

Edward C. Corrigan

Edward C. Corrigan

Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada.