Ottawa appeals court ruling that U.S. is unsafe for refugees

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A month after being chastised for its complicity in sending asylum-seekers to U.S. jails, a defiant Ottawa says it’s appealing a court decision that ruled its bilateral pact with Washington is “unconstitutional.”

On Friday, Public Safety Minister Bill Blair said the government will challenge the earlier Federal Court decision that gave officials until January to ensure the Safe Third Country Agreement (STCA) complies with the Canadian charter before declaring the accord invalid.

“There are factual and legal errors in some of the Federal Court’s key findings. There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” Blair said in a statement.

Advocates called the Liberal government’s move “disappointing and shameful.”

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“This decision to appeal protracts Canada’s ongoing complicity in what is by any measure a full blow human rights crisis in the United States,” said Alex Neve, Secretary General at Amnesty International Canada, one of the parties that took the government to court.

“This appeal flies in the face of government assertions that Canada ‘remains firmly committed to upholding a compassionate, fair and orderly refugee protection system.’ ”

Added Dorota Blumczynska, president of the Canadian Council for Refugees: “This government says that it believes in the rights of refugees, that it’s feminist, anti-racist and committed to human rights.

“Yet when a court rules that rights are being abused, the government chooses to continue the policies that cause these rights abuses.”

Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. Each can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they should pursue their claims in the country where they first arrived.

The accord, which took effect in 2004, was originally touted by both countries as a way to curb “asylum shopping.”

But critics have argued the U.S. asylum system is cruel and inhumane, criticisms that have grown louder and more pronounced under the Trump administration.

In her ruling released last month, Federal Court Justice Ann Marie McDonald said asylum-seekers directed back to the U.S. were routinely detained and their verbal accounts demonstrated both “physical and psychological suffering” from detention.

Blair maintained that Canada is firmly committed to upholding a “compassionate, fair and orderly” refugee system.

“The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first safe country in which they arrive,” Blair said.

However, critics said the agreement to ban potential asylum-seekers from entering Canada has only created further chaos.

“The STCA bar led to people crossing into Canada at Roxham Road in Quebec,” said Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, another party in the litigation.

“The dissolution of the STCA would allow people to instead cross at official ports of entry, and be dispersed throughout border crossings from coast to coast, rather than be attracted to Quebec.”

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Queen’s University immigration law professor Sharry Aiken said every day that this agreement remains in place is another day where asylum seekers’ most fundamental right — to be free from arbitrary detention — is at risk.

“It is a waste of taxpayer money launching this matter up to the Federal Court of Appeal when the most appropriate course of action would and should be immediate cancellation or at least suspension of the agreement,” Aiken said.

“Such a move would not preclude the government from resurrecting a similar and more genuine responsibility-sharing deal when conditions facing asylum-seekers in the U.S. change, as (I hope) they will at some point … .”

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung

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