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Advocates, lawyers mull court challenge to Canada’s refugee pact with U.S.

Muslim women pray before a protest in lower Manhattan against the polices of President Donald Trump on February 1, 2017 in New York City. Canadian government has faced widespread calls to suspend the Safe Third Country Agreement.

Advocacy groups and lawyers say they are considering taking the federal government to court again over an agreement that prevents migrants who arrive from the United States from seeking asylum in Canada, in light of recent anti-immigration measures in the U.S.

Last week, President Donald Trump signed a number of directives, including a 120-day ban on all refugee admissions and a ban on the entry of people from seven predominantly Muslims countries – Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia – for 90 days. Immigration experts say the executive order clearly violates the Safe Third Country Agreement, which requires that people be sent back across the border if they claim refugee status after entering Canada through the United States, which is considered a "safe third country" by the Canadian government.

After widespread calls from legal experts to suspend the agreement between Canada and the United States, Immigration Minister Ahmed Hussen said Tuesday the government would not do so. Ottawa's refusal has advocates and immigration lawyers considering their legal options.

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"I would expect that in the very near future, it is extremely likely that a new challenge will be launched," said immigration lawyer Lorne Waldman, who represented Amnesty International in a 2005 court challenge of the agreement.

"There's a need to gather some evidence to really show the impact [of the Trump executive orders], but I don't think that's something that's going to take a significant amount of time."

Amnesty International Canada, the Canadian Council of Churches and immigration lawyers say they are discussing when and how to launch a court challenge to the Safe Third Country Agreement. It would be the second time the agreement, which came into effect in 2004, has been taken to court.

In 2005, Amnesty International, the Canadian Council of Churches, the Canadian Council for Refugees and a Colombian national named "John Doe" challenged the agreement at the Federal Court. The case said that Mr. Doe was denied the right to make a refugee claim in the United States and faced deportation to his country of origin, where he feared being persecuted and tortured. It asked the Federal Court to declare the designation of the United States as a safe third country unconstitutional and in breach of international law. In 2007, a Federal Court judge ruled that the U.S. was not a safe third country for refugees.

However, that decision was reversed by the Federal Court of Appeal in 2008, which ruled that whether the United States actually complies with the agreement is irrelevant, as long as the Canadian government had considered the human-rights situation in the U.S. when entering into the deal. The judge also ruled that a challenge to the designation of the United States as a safe third country could only be brought forward by a refugee who has been denied entry to Canada. Mr. Doe had not.

Advocates say there is good reason to believe that a challenge to the Safe Third Country Agreement may not be rejected on procedural grounds today because of a 2012 Supreme Court decision, Canada v. Downtown Eastside Sex Workers United Against Violence Society, which made it easier for non-governmental organizations to launch constitutional claims in the public interest.

"The Supreme Court ruled in 2012 … that there should be a more relaxed approach to how judges assess the legitimacy of concerned organizations bringing cases forward rather than strictly limiting access to the courts to individuals who are directly affected by a law or policy," said Alex Neve, secretary-general of Amnesty International Canada.

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Andrew Brouwer, advocacy co-chair of Canadian Association of Refugee Lawyers, said there is also growing evidence that under Mr. Trump, the United States is not a safe country for refugees, which would bolster a court challenge.

"I have been speaking to NGOs and refugee academics across the States over the past few days and the consensus … is that combination of those executive orders and the ongoing promises of the new administration to further clamp down makes it unsafe for refugees," said Mr. Brouwer, who represented the applicants in the 2005 case.

Advocates say the easiest and most responsible way forward for the Canadian government would be to suspend the Safe Third Country Agreement while it can be reviewed. The text of the agreement allows either country to suspend the agreement for up to three months with written notice; suspensions may then be renewed for an additional three months at a time. Either country can also terminate the agreement with six months' written notice.

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About the Author
Parliamentary reporter

Michelle Zilio is a reporter in The Globe and Mail’s Ottawa bureau. Previously, she was the associate producer of CTV’s Question Period and a political writer for CTVNews.ca. Michelle has also worked as a parliamentary reporter for iPolitics, covering foreign affairs, defence and immigration, and as a city desk reporter at the Ottawa Citizen. More

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