A young girl, part of a family of asylum seekers, crosses the U.S.-Canadian border at Roxham Road in Champlain, N.Y. Photo: Daniel Case/Wikimedia Commons
The Liberal government announced Aug. 21 that it is appealing a recent Federal Court decision that struck down the U.S.-Canada Safe Third Country Agreement—but the Anglican-affiliated organizations that brought the original legal challenge are pushing the government to drop the appeal.
In a decision released July 22, Justice Ann Marie McDonald ruled that the Safe Third Country Agreement (STCA) violates the Canadian Charter of Rights and Freedoms. The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and a number of individuals were litigants in the case. (The Anglican Church of Canada is a member of the Canadian Council of Churches; the Primate’s World Relief and Development Fund is a member of the Canadian Council for Refugees.)
The agreement mandates that refugee claimants request refugee protection “in the first safe country they arrive in”—meaning that would-be refugee claimants can be turned back if attempting to cross the U.S.-Canada border. The safe third country designation is reserved for “countries that respect human rights and offer a high degree of protection to asylum seekers,” according to the Immigration and Refugee Protection Act.
In her ruling, McDonald said the agreement infringes on the section of the Charter guaranteeing “the right to life, liberty and security of the person.”
Critics have argued that the STCA encourages irregular border crossings into Canada and that the U.S. immigrant detention system is not humane enough to qualify the country as safe. Among the testimony of litigants in the case was that of Nedira Mustefa, a Muslim woman from Ethiopia who was detained in the U.S. after attempting to enter Canada as a refugee, where she was held in solitary confinement.
According to the Federal Court decision, Mustefa told the court that she believed she was fed pork, despite telling the guards that she could not eat if for religious reasons; that she skipped meals because she could not access appropriate food and lost 15 pounds; that the facility was “freezing cold”; and that she felt “scared, alone and confused at all times” and did not know when or if she would be released.
In her decision, McDonald stated that Mustefa’s treatment alone was enough to “shock the conscience,” a legal standard used to determine a breach of fundamental justice.
The Federal Court case represents the latest in a legacy of refugee advocacy for the Canadian Council of Churches (CCC) that started with a refugee program after the Second World War, according to General Secretary Peter Noteboom. In the 1980s and 1990s, the CCC was involved in the creation of Canada’s refugee sponsorship program and increasingly in advocacy work, eventually intervening in the Singh case—a precedent-setting Supreme Court case that ruled that anyone physically present in Canada has access to the Charter of Rights and Freedoms.
The CCC—along with the CCR and Amnesty International—has opposed the STCA since it came into effect in 2004, and the three organizations launched a previous legal challenge which won in Federal Court but was overturned on appeal.
The CCC has been meeting with and contacting MPs since the decision in July, advocating that the government not appeal the case. With the news of the appeal, Noteboom says, they are readying for the case to go to the Federal Court of Appeal.
The CCR is also launching a campaign calling on the government to drop the appeal.
The Primate’s World Relief and Development Fund (PWRDF) will be distributing the CCR’s calls to action through its networks in the coming weeks, Public Engagement Program Coordinator Suzanne Rumsey says.
While PWRDF’s work is not directly impacted by the Safe Third Country Agreement, “it’s part of a larger piece about what kind of a country we want to live in,” Rumsey says.
“I think there would be some people who would say that the U.S. has never been a safe third country, but certainly since President Trump came to power, he’s been implementing in one way or another anti-immigration policies that are just making it more and more unsafe for asylum seekers in the U.S.”
Increases in irregular border crossings into Canada from the US have been widely reported since 2016, with unofficial crossings rising in border towns like Emerson, Man. and Roxham Road in Quebec becoming a busy entry point. There have also been reports of human rights violations in immigrant detention centres in the U.S.—most recently, a whistleblower alleged that an ICE facility in Georgia allowed rampant spread of COVID-19 and performed hysterectomies without proper consent.
“If we say that we have a Charter of Rights and Freedoms, and it applies to everyone in Canada, then that includes refugees who come to make a claim here, however they arrive,” Rumsey says.
“It’s part of the Christian faith to always welcome the stranger,” says Noteboom. “The story of Jesus, of being a refugee in a refugee family, fleeing from Egypt, is also a kind of a core part of the story of salvation, so I’d say it’s something we can identify with.”
“Holding to that high standard of the principles of justice and the Charter of Rights and Freedoms being available to all that arrive in Canada is, I think, the standard that we should be reaching for,” he says.
In the statement announcing the government’s decision to appeal, the Hon. Bill Blair, Minister of Public Safety and Emergency Preparedness, said that the government had assessed “that there are factual and legal errors in some of the Federal Court’s key findings. There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law.”
In response to a request for comment from the Anglican Journal, a spokesperson for Blair wrote that the government is appealing the decision “because we believe there are errors in some of the key findings of fact and law. The decision suggests all asylum claimants who are ineligible under the STCA and turned back to the U.S. are automatically detained as a penalty. This is not the case. The U.S. remains a party to the UN Refugee Convention.”
The spokesperson also said that the STCA “has served Canada well for 16 years” and “remains a comprehensive vehicle for the fair, compassionate and orderly handling of asylum claims in our two countries.”
“Canada is a welcoming country for those fleeing war and persecution, and we take our international commitments regarding the treatment of refugees very seriously.”
Archbishop Linda Nicholls, primate of the Anglican Church of Canada, says she can understand the tension between welcoming people through the border and managing the number of newcomers to the country. “On the other hand, [from] the kind of treatment we’ve seen of people in the U.S., [it] is certainly not what I would call a safe third country,” she adds.
“I certainly have great sympathy with those who are … fleeing violence or just trying to find somewhere of safety to raise their family, but I can also empathize with the government trying to evaluate how many newcomers can the country absorb well…. And of course right now that’s a tremendous concern, at a time when our healthcare system is under tremendous stress with COVID-19 and when it’s unclear what’s going to happen to our economy in the next while,” she says.
In general Nicholls says she’s been proud of the government’s stance on refugees. “I’m grateful for Canada’s generosity to refugee claimants … but trying to evaluate where that line is between what compassion and justice dictate versus the realities of being able to house and provide for people who arrive, is certainly challenging.
“I would hope we would come down on the side of compassion.”