When faced with the indefensible, the best thing to do is stop defending it.
That’s what Canada should do with the Safe Third Country Agreement, its bilateral arrangement with the United States by which each country sends would-be refugee claimants back to the country where they first arrived.
In practice, it means Canada sends asylum seekers who turn up at ports of entry along the American border back to the U.S.
The agreement is predicated on the assumption that both countries have fair and well-functioning refugee systems, and that claimants can get decent treatment on either side of the border. Essentially, that both countries are “safe” for asylum seekers.
That hasn’t been true for a long time, at least since Donald Trump entered the White House and immediately began cracking down on immigration, both legal and illegal.
Refugee advocates have been urging Ottawa to suspend the agreement for years, as has the Star. And now a judge of the Federal Court has added her voice, concluding in a long-anticipated ruling that the agreement violates the right to “life, liberty and security of the person” guaranteed by Section 7 of the Charter of Rights and Freedoms.
The decision by Justice Ann Marie McDonald is a powerful one, and concludes in effect that Canada can no longer outsource decisions on who deserves asylum to an American system that is far from safe. After hearing evidence from several people who have gone through the system, she writes that “the accounts of the detainees (in the U.S.) demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”
Justice McDonald suspended her ruling for six months to give the government time to consider how to remedy the situation.
It could appeal the decision to the Federal Court of Appeal, and then all the way to the Supreme Court of Canada if it fails there.
But a wiser course, not to mention a more humane one, would be to stop defending this indefensible agreement. The government should suspend it immediately, while it works out a longer-term solution for asylum seekers coming from the United States.
Much can happen in six months. Ottawa may be able to renegotiate the agreement, and it can hope for change in the U.S. administration after November’s presidential election. It’s possible that a Biden administration will take steps to reduce abuses in the U.S. refugee system to the point where it can once again be considered “safe” for those seeking refuge.
Certainly, that’s not the case now, judging by Justice McDonald’s lengthy decision. She found evidence that those handed back to U.S. authorities by Canadian border officials are imprisoned for weeks or months in often-terrible conditions as punishment for seeking asylum.
The judge found evidence from an Ethiopian woman named Nedira Mustefa to be particularly “compelling.”
After trying to enter Canada, Mustefa was turned back at the border only to be held in solitary confinement, fed food she believed to be pork even though she told guards she is a Muslim, and lost nearly 15 pounds while detained for a month in a “freezing cold” cell. She was “scared, alone and confused at all times.”
Canada, wrote McDonald, “cannot turn a blind eye to the consequences” of handing Mustefa and others like her over to U.S. authorities under current conditions. It can no longer argue that it doesn’t know what happens to these people. And it can no longer argue that their right to a fair hearing and decent treatment will be upheld, as the Safe Third Country Agreement states.
There are other problems with the agreement. Since it applies only at official ports of entry, many thousands of would-be refugees crossed on foot at other points, flooding Canada’s refugee system.
But that was in some ways a side issue. Justice McDonald’s ruling explodes the heart of the agreement. Ottawa should suspend it now.
https://www.thestar.com/opinion/editorials/2020/07/24/after-court-ruling-ottawa-should-suspend-refugee-agreement-with-us.html
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