Canada, U.S. pact on refugees flawed, lawyer says

Globe and Mail 02/02/07
MARINA JIMÉNEZ

Three refugee advocacy groups are mounting a legal challenge to the Safe Third Country Agreement between Canada and the United States, arguing that the United States is not a safe country for all refugees and that the agreement is unconstitutional.

Canada should not automatically send refugee claimants at the border back to the United States, and to do so is a breach of the Charter and of international refugee and human-rights law, Toronto lawyer Barbara Jackman said.

"It's not often someone goes to court moving to strike out an entire government program," said Ms. Jackman, who will argue the case Monday in Federal Court on behalf of the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches.

The Safe Third Country Agreement, implemented in 2004, requires refugee claimants to seek protection in the first country they reach, and has resulted in a dramatic drop in the number of asylum claims in Canada to just 23,000 last year, from an average of 30,000 annually a decade earlier.

Ms. Jackman, Lorne Waldman and other lawyers have worked for months on the legal bid to overturn the agreement and have a voluminous file of affidavits from U.S. refugee experts and scholars. "The designation of the U.S. as 'safe' is an error," their factum states.

International refugee conventions stipulate refugees will not be sent back to a country where their life would be threatened due to their race, religion, nationality, social group membership or politics.

However, leading U.S. academics on asylum law outline several problems with the U.S. refugee system, including: the deadline of one year to file a refugee claim; excessive use of detention; restrictions on appeals; overbroad provisions excluding refugee claimants who are deemed to have provided "material support" to terrorists.

As well, Ms. Jackman will argue that the United States does not respect the UN Convention Against Torture, but sends people back to countries where they are tortured, and also operates a "rendition" program, where suspects are extradited to third countries for interrogation and torture.

"Maher Arar is a good example. He was sent to Syria and tortured . . . ," she said.

The government is expected to argue that the Safe Third Country Agreement is constitutional and that the differences between the U.S. and Canadian refugee systems are not significant.

Colombians have been the most adversely affected by the agreement, Janet Dench, executive director of the Canadian Council for Refugees, noted. In 2004, Colombia was the leading source for claims made in Canada, with an 80-per-cent acceptance rate. The agreement has reduced Colombians'claims by 70 per cent, since almost all are made at the border.

The United States has a lower acceptance rate for Colombians, according to Ms. Dench. If claimants paid bribes to rebel groups fighting to overthrow the Colombian government, they are automatically disqualified from seeking asylum, even if they did so under duress to save their lives, she added.