The Canadian Federal Court of Appeal, on June 27, 2008, reversed the Federal Court decision that had struck down the Safe Third Country Agreement with the United States. The Federal Court of Canada had overturned the "Canada United States Safe Third Country Agreement" in a judgment issued on November 29, 2007.
In his 124-page decision Mr. Justice Michael Phelan ruled that the Safe Third Country Agreement which came into effect on December 29, 2004 and regulated refugee movement between Canada and the USA violated 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 Safe Third Country Agreement severely restricted refugee claimants’ rights in seeking protection in Canada if they first entered the United States. Refugee claimants who first entered Canada first were similarly restricted in the U.S. Refugee advocates argued that the United States was not a safe country for refugees. The Federal Court of Appeal ruling overturning the decision was appealed to the Supreme Court of Canada.
Leave to appeal to Supreme Court denied
On February 5, 2009, the Supreme Court of Canada denied Leave to Appeal, ending this legal challenge to the Safe Third Country Agreement. The decision of the Supreme Court of Canada was met with regret by the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches who had challenged the legality of the Safe Third Country Agreement.
The Federal Court of Appeal decision overturned the lower court ruling by Mr. Justice Phelan of the Federal Court of Canada. Justice Phelan had found that the Safe Third Country Agreement had violated Canada’s Charter of Rights and Freedoms, the 1951 Geneva Convention on Refugees and the Convention Against Torture.
The Appellate Court, however, rejected the argument that the Safe Third Country Agreement was in violation of Canadian law. For the Federal Court of Appeal Justice John Evans held that the lower court exceeded its authority by pronouncing on "wide swaths of U.S. policy and practice." The Federal Court of Appeal stated that the proper test was whether the Canadian federal cabinet acted in good faith when it negotiated the Safe Third Country Agreement and was satisfied that the U.S. granted sufficient protection to refugee claimants at the time the Agreement was signed.
Elizabeth McWeeny, the President of the Canadian Council for Refugees (CCR) in a press release issued on February 5, 2009 stated, "This decision means that refugees will not have their day in court." She added, "The U.S. is not in fact safe for all refugees, so we deeply regret that the Supreme Court has not taken this opportunity to ensure that Canada provides refugees the protection they need from forced return to persecution."
The refugee support organizations in their press release noted that the Federal Court of Appeal did not dispute the lower court’s finding of non-compliance and instead it ruled that the conclusion "that the U.S. does not ‘actually’ comply is irrelevant."
The Press Release also stated, "The courts have therefore permitted the continued operation of the Safe Third Country Agreement, despite the fact that the only court to rule on the question found that the U.S. is in violation of its obligations not to send refugees back to persecution, or anyone back to torture."
The organizations announced that they will "be seeking other avenues to challenge through the courts the unjust removal of refugee claimants to the U.S."
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.