UNNATI GANDHI AND COLIN FREEZE
November 30, 2007
Citing the example of Maher Arar, a Federal Court judge ruled yesterday that Canada must reconsider a reciprocal refugee-processing agreement with the United States because Washington flouts conventions meant to safeguard immigrants against torture in their homelands.
Experts say the effect of the ruling may ultimately be that Canada will have to process thousands more refugee claimants each year, now that the continued existence of the Safe Third Country Agreement (STCA), passed in 2004, is in question.
Mr. Justice Michael Phelan wrote that the U.S. does not comply with international refugee conventions and that the Canadian government, in entering into the agreement, "acted unreasonably" in concluding that it did.
"... The United States' policies and practices do not meet the conditions set down for authorizing Canada to enter into a STCA," Judge Phelan wrote in his 126-page decision.
"The U.S. does not meet the Refugee Convention requirements nor the [UN] Convention Against Torture prohibition (the Maher Arar case being one example). Further, the STCA does not comply with the relevant provisions of the Charter."
Mr. Arar was under Canadian investigation in 2002 when U.S. officials stopped him at a New York airport and sent him to the Middle East to be interrogated as an alleged al-Qaeda suspect. His complaints of being wrongly smeared at home and tortured overseas were upheld by a judicial inquiry last year, causing Canada to reconsider many of its laws and practices.
Judge Phelan also concluded that the Canadian government has not conducted the ongoing review of the STCA mandated by Parliament "despite both the significant passage of time since the commencement of the STCA and the evidence as to U.S. practices currently available."
The STCA requires refugee claimants to seek protection in the first country they reach, and has allowed Canada to automatically send refugee claimants at the border back to the United States, from where they are usually detained or deported.
The result has meant a dramatic drop in the government's refugee caseload, one immigration expert says, reducing the number of asylum claims in Canada by as much as 50 per cent.
"By removing the Safe Third, we can reasonably expect to see a new significant inflow of refugee claimants to Canada from the United States. The door will soon be open ... [because] the Federal Court decision has made it virtually impossible for the Safe Third Country Agreement to continue to exist," said Richard Kurland, a Vancouver lawyer and immigration policy consultant.
Karen Shadd-Evelyn, a spokeswoman with Citizenship and Immigration Canada, read a prepared statement that said the STCA remains in effect, as the court has given both parties until Jan. 14 to make and respond to submissions for an appeal.
Janet Dench, executive director of the Canadian Council for Refugees, which mounted the legal challenge based on the argument that the U.S. is not a safe country for refugee claimants, said the court's decision is significant.
"It is very good to see a court is taking seriously the human rights of refugees because there are times when we feel the rights of refugees don't count for much around the world."
