Groups urge dismissal of Canada’s application to stay Safe Third Country Agreement decision

Organizations have called for the Federal Court of Appeal to reject the federal government’s request to stay the ruling invalidating the legislative provisions implementing the Safe Third Country Agreement.

In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), 2020 FC 770, the Federal Court held that Canada is breaching the Charter rights of the refugee claimants who are returned to the U.S. pursuant to the agreement, with many of these refugee claimants experiencing immediate imprisonment and inhumane conditions such as solitary confinement, inappropriate or inadequate food and freezing temperatures.

The federal government contended that striking down the agreement would result in an upsurge of refugee claimants, but the Federal Court disagreed, stating that the refugee system in place could handle this issue. The Federal Court suspended its declaration of invalidity for six months from July 22, the date of the decision, to give Parliament enough time to respond.

The federal government then appealed the decision and filed an application to stay the order of the Federal Court beyond the six-month suspension period, while the appeal is pending. The Federal Court of Appeal heard the federal government’s arguments on Oct. 23.

The Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, along with the individual litigants, urged the Federal Court of Appeal to reject this stay request. The organizations argued that the federal government has not shown the irreparable harm that it will suffer if the agreement is struck down.

The organizations contended that the impacts of the COVID-19 pandemic have resulted in lesser refugee claims and travel, so the federal government’s submission that the refugee system would be overwhelmed is speculative. The organizations also said that striking down the rules that were found to be violative of the rights to liberty and security of the person would serve the public interest and would prevent refugee claimants from being detained in the U.S.

“Every day that the rules remain in effect, more people risk being returned to imprisonment in the US and possible return to persecution,” said Dorota Blumczynska, president of the Canadian Council for Refugees, in the news release.

“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed, human rights law and policy campaigner at Amnesty International Canada, in the news release.

“The principles of justice in Canada’s Charter of Rights and Freedoms must be upheld,” said Pastor Peter Noteboom, general secretary for the Canadian Council of Churches, in the news release.

The Canadian Association of Refugee Lawyers said that prolonging the Safe Third Country Agreement would legitimize the inhumane treatment of asylum-seekers subjected to the detention policies in place in the U.S.

“The Government cannot turn a blind eye to the human suffering caused when people seeking protection are turned back at the Canada-U.S. border and jailed,” said Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, in the release.

Amanda Aziz, a member of the Association’s executive, stressed that the situation in the U.S. is only worsening. “There are now numerous reports that detail the horrific abuses in the U.S., including new evidence of forced hysterectomies being performed on detained women in the U.S.,” said Aziz.