By Gianne Broughton

The recent decision by the Supreme Court not to hear the case regarding the Safe Third Country Agreement raises serious questions about balances of powers in Canadian democracy. In the Safe Third Country Agreement signed by the Government in 2004, Canada and the US designate each other as “safe countries”, and if a refugee arrives in one country first, the other country will not allow him or her to apply for refugee status. This agreement implements a provision in Canada’s Immigrant and Refugee Protection Act (IRPA), where it says that Cabinet can designate a country as “safe”, and lists four factors that are to be considered :

(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;

(b) its policies and practices with respect to claims under these Conventions;

(c) its human rights record; and

(d) whether it is party to an existing agreement for the purpose of sharing responsibility for refugee protection.

In December 2005, the agreement was challenged in Federal Court by the Canadian Council for Refugees the Canadian Council of Churches, and Amnesty International, along with an anonymous refugee who did not feel safe in the US, and wished the opportunity to claim refugee status in Canada. (CFSC is a member of CCR through the Toronto Monthly Meeting Refugee Committee). They presented clear evidence that the United States does not fully comply with the Refugee Convention and the Convention Against Torture, and therefore should not be designated as “safe” for all refugees. In November 2007, the Federal Court agreed and quashed the designation of the US as a safe third country.

The current Government (elected in 2006) appealed the decision to the Federal Court of Appeal. In June 2008, those judges reinstated the agreement, because they found that the Act did not require that the Cabinet prove that the designated country actually abides by the Conventions, but only that the Cabinet be acting in good faith. This interpretation of the law is shocking because it does not require that the Cabinet make decisions that actually protect people and it insulates such Cabinet decisions from challenge through the courts. The Federal Court of Appeal also found that a Charter challenge could only be brought by someone who actually came to the border and was refused the opportunity to claim refugee status. The Court wrongly maintained that a person could make a legal challenge while at the border: in fact a claimant denied on safe third country grounds has no opportunity to initiate legal proceedings, let alone get a decision from the court, before being sent back to the US. This is shocking because it demands that the vulnerable put themselves in further danger before Canada will offer them protection.

So, the three organizations applied to the Supreme Court to examine this decision. On February 5, the Supreme Court decided not to hear the case, and, as is customary, its reasons have not been published. This raises deep questions:

• How is it that a Canadian law can empower Cabinet to base life-and-death decisions on opinions that do not reflect reality?

• How is it that the Cabinet can be empowered to make policy that does not comply with the Conventions on refugees and against torture?

• How can these questions not be of concern to the Supreme Court of Canada?

• How is our government to be held accountable to the hard-won international laws that are our framework for living in peace if our courts do not hold them to that standard?

Brydon Gombay, clerk of the Refugee Committee comments: “The refusal of the Supreme Court risks politicising decisions made about some of the most vulnerable people in the world. When that is combined with the proposed changes to IRPA included in the recent Federal Budget (Bill C-50), which give inordinate power to the Minister of Citizenship and Immigration, the future safety of refugees is worrying indeed.”

Gianne Broughton is the program coordinator of the Quaker Peace and Sustainable Communities Committee. She thanks Janet Dench, Executive Director of CCR for her careful work on preparing the court documents and for reviewing this article for accuracy.

First published in Canadian Friends Service Committee’s newsletter, Quaker Concern, spring 2009 edition .

Tags: Canada, Federal Court, IRPA, Refugee, Safe Third Country, Supreme Court

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