On June 27, 2008, the Canadian Federal Court of Appeal reversed the earlier landmark Federal Court decision that had struck down the Safe Third Country Agreement with the United States. The Agreement with the U.S. severely restricted refugee claimants from seeking protection in Canada if they first had entered the United States.
The Court of Appeal upheld the "Safe Third Country Agreement," with the United States and implemented in December 2004. The agreement was designed to put an end to "asylum shopping" by individuals who had entered the United States or were failed U.S. refugee claimants.
This ruling overturns the November 29, 2007 decision by the Federal Court of Canada which found that the Safe Third Country Agreement had violated the Refugee Convention, the Convention Against Torture and Canada’s Charter of Rights and Freedoms.
The appeal court rejected the argument that the U.S. was not a safe country for refugees. Justice John Evans wrote that the lower court overstepped its authority by attempting to pronounce on "wide swaths of U.S. policy and practice." The Federal Court of Appeal ruled that the proper test was whether the federal cabinet acted in good faith when it negotiated the Safe Third Country Agreement and was satisfied that the US granted sufficient protections to refugee claimants.
The Federal Court of Appeal decision was a bitter defeat for the Canadian Council of Refugees, the Canadian Council of Churches, Amnesty International, and a Colombian man identified as John Doe. Mr. Doe was denied the right to make an asylum claim in the U.S. and faced deportation to his home country where he had a fear of being persecuted and tortured.
The Federal Court of Appeal also concluded that the groups that launched the legal action did not have a direct stake in the case. It held that for the Court to examine the broad implications of U.S. policy and Canada’s Charter obligations, a court challenge would have to brought by a refugee claimant who tried to enter Canada, was refused entry and forced to return to the United States.
"John Doe never presented himself at the Canadian border and, therefore, never requested a determination regarding his eligibility," said the Court. "There is, in this case, no factual basis on which to assess the alleged charter breaches."
Janet Dench, Executive Director of the Canadian Council for Refugees, said “it is "completely unrealistic" for a prospective refugee to launch a Canadian court challenge because they are turned away at the U.S.-Canada border within minutes or hours.” The individual would be immediately returned to the U.S., placed in detention and perhaps quickly deported to the country where they feared persecution and torture.
Justice Noel, in his majority reasons for the Federal Court of Appeal, wrote that the lower court’s conclusion “that the US does not ‘actually’ comply is irrelevant.” He determined that so long as Cabinet had “considered” the human rights situation in the U.S. and was not acting in bad faith in entering into the agreement, the reality facing refugees affected by the agreement does not matter. He also ruled that a challenge to the designation of the US as a safe third country could only be brought by a refugee who has been denied entry to Canada and is facing a real risk of return to torture or persecution.
“This decision is deeply troubling,” said Andrew Brouwer, one of the lawyers representing the groups. “The Court of Appeal has not addressed the fundamental human rights issues at stake in this case, and has largely insulated the government from review by the Court. The Court’s finding on public interest standing is likewise a step backwards. In effect, the Court of Appeal is demanding that before a court can hear a challenge to the legality of the agreement a refugee must put her life at risk by coming to the border, getting refused and handed over to US authorities for likely deportation to torture or persecution. This requirement is both impractical and dangerous.”
“Sadly the court chose to focus on the scope of the review and questioned the right of the petitioners to bring forward such a challenge, rather than on the human rights issues at stake for refugees,” commented Gloria Nafziger of Amnesty International. “The evidence shows that United States falls short of its responsibilities to protect refugees under international law. It fell short of those responsibilities on the day the Agreement was signed, and has continued to fall short of these responsibilities to this day.”
The organizations are considering bringing an appeal to the Supreme Court of Canada.