Federal Court Questions Canada-US Refugee Agreement

Citing several recent cases, the Canadian federal court has deemed that the United States is not a safe country for refugee claimants and that the Safe Third Country Agreement between the two countries violates Canada's Charter of Rights and Freedoms.

Canada entered into the Safe Third Country Agreement (STCA) with the US in 2004, establishing that asylum-seekers would receive equivalent standards of refugee protection in both countries. The STCA denies refugees, who have first landed in the US, the right to later seek refugee protection in Canada. It allows the two countries to share the responsibility for refugee protection and has reduced the number of refugee claimants from the United States at the Canadian border.

The Canadian Council for Refugees is challenging the Safe Third Country Agreement on grounds that refugee claimants are not given the same treatment in the United States as they are in Canada. For example, Canada will not deport failed refugee claimants back to Haiti, among other countries where they may be tortured, but the United States will. Mr. Justice Mike Phelan, the federal court judge who heard the allegation, ruled that the United States "does not meet the Refugee Convention requirement nor the [UN] Convention Against Torture prohibition," and that, in entering the STCA, Canada "acted unreasonably" in concluding that it did.

Additionally, STCA unfairly discriminates against method of arrival. It allows Canadian Border Service Agents to automatically send refugee claimants back to the US if they are arriving by land; however, those who arrive by air are not turned back.

Amnesty International, among other groups, called on the federal government to scrap the STCA after Judge Phelan ruled that it violates the Canadian Charter of Rights and Freedoms. "We have a judgment that in clear, stark, detailed ways highlights the multiplicity of human-rights violations and shortcomings in the refugee system that await asylum claimants who are turned away from the Canadian border and forced into the US," stated Alex Neve, secretary-general of Amnesty International.

The agreement currently remains in effect, as the Federal Court has given both parties until January 14, 2008 to make and respond to submissions for an appeal. If the Agreement ceases to exist, Canada can reasonably expect to see a significant inflow of refugee claimants from the United States.