Responding to the application to stay the Safe Third Country Agreement ruling

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Backgrounder

Introduction

On 22 July 2020, the Federal Court determined that Canada is violating the Charter rights of the refugee claimants it returns to the U.S. under the Safe Third Country Agreement (STCA). The Court gave Parliament six months to respond to the ruling.

The Government has appealed the ruling and has asked the Federal Court of Appeal to stay the order of the Court beyond the six-month suspension already granted, while the appeal is being heard.

The Federal Court of Appeal will hear the stay application 23 October 2020.

Summary of arguments of the respondents

1. Maintaining the STCA is against the public interest because it violates the Charter

Following review of a 20,000-page record, close to 200 pages of legal argument and five days of oral argument, the Federal Court concluded that the STCA regime violates the Charter rights to liberty and security of the person of those subject to it. It is contrary to the public interest to maintain policies that are unconstitutional.

2. Contrary to the government’s argument, setting aside the STCA will cause no irreparable harm to the functioning of the border or the sustainability of Canada’s refugee determination system

The government has no evidence to support its assertion that there would be a surge in new claims if the STCA is set aside. In fact, the COVID-19 pandemic has led to dramatic reductions in the number of claims. Travel to the US and within the US to the northern border are markedly down, and the border has been largely closed through Orders in Council. These factors will continue to depress refugee claim numbers even if the STCA is no longer in place.

Furthermore, refugee claim numbers have historically fluctuated significantly from year to year. The government has shown in the past that it can adapt to increases in numbers of claims.

3. Claimants who would otherwise have crossed irregularly will now present themselves at regular ports of entry

If the STCA is no longer in effect, claimants will be able to present themselves at a port of entry, rather than crossing irregularly. It is difficult to understand how this regularization of crossings could constitute irreparable harm.

4. Refugee claimants returned to the U.S. under the STCA face detention, in worsening conditions and with increasing barriers to protection

Every additional day that the STCA remains in effect exposes vulnerable refugee claimants to serious harm in the U.S.

Refugee claimants returned to the U.S. under the STCA face an immigration system

that detains by default. The harsh and often inhumane, cruel and unusual immigration detention conditions in the U.S. include:

  • Detention facilities with punitive conditions;
  • Solitary confinement;
  • Inadequate  medical care;
  • Staggering rates of sexual assault and sexual harassment;
  • Cold temperatures;
  • Inadequate food and lack of accommodation of religious and dietary customs

Conditions have further deteriorated during the COVID-19 pandemic with inadequate sanitation practices and handling of infectious diseases. The pandemic also makes it more difficult for those in detention to pursue asylum claims, as there is a mandatory isolation on arrival and limited opportunities for communication.

5. The U.S. denies access to asylum to some people who need protection

Women facing gender-based persecution are frequently denied protection in the U.S. due to a restrictive interpretation of the refugee definition.

The U.S. bars access to asylum to people who spent more than a year in the country, with only limited exceptions.

6. So-called relief mechanisms are ineffective or illusory

The government claims that people facing return to the U.S. under the STCA could apply for a Temporary Resident Permit, a deferral or a stay of removal, or an adjournment. These options were already rejected as illusory by the Federal Court.

7. Conclusion on balance of convenience

It is not in the public interest to maintain an unconstitutional regime that exposes refugee claimants to a risk of detention in conditions that are now even worse than those that Justice McDonald found “shock the conscience”, as well as a heightened risk of refoulement on account of barriers to mounting claims from detention, substandard treatment of gender-based claims, and the impact of the one-year bar.

In recent similar stay applications, where the government has argued that the administrative convenience of refugee policies outweigh the irreparable harm of rights violations to individuals, the Court of Appeal has found that the balance of convenience favours the individuals.

8. Impact of the Orders in Council closing the border due to the pandemic

If the border is re-opened, the evidence shows that there will be no unmanageable surge in claims at the border and all of the harms to those who would otherwise be sent back under the STCA will be avoided.

If the border remains closed, there will also be no surge. Refugee claimants may still be returned to the U.S., but under the pandemic border closure rules, rather than the STCA. This means that they will be allowed to return to Canada to pursue their claim after the pandemic, and they will benefit from assurances from the U.S. that they will not be detained.

 

20 October 2020

Oct 2020