A hopeful step

Almost three months ago, the Safe Third Country Agreement (STCA) was found in violation of the Canadian Charter of Rights and Freedoms. Yet despite this ruling by Justice Phelan of the Federal Court of Canada, the Canada-US border remains closed to many refugees at risk of being sent back to face harm and persecution. Is there still hope for refugees seeking out a safe place to live?

The Safe Third Country Agreement

First, a bit of history: the STCA was signed in 2002 between Canada and the US. It stipulates that refugees entering either country from the other must be refused on the basis that they were already in a safe country. It was signed as a measure of political and administrative convenience: since many refugees come to Canada through the US, the STCA was seen as a way to reduce the number of claimants in Canada, thereby eliminating some of the backlog associated with processing refugee claims.

When the STCA was first implemented in December 2004, refugees fearing their status panicked at the deadline and rushed to Canadian border crossings. But they were denied access to protection in Canada because they were already in the US, considered to be a safe country.

'John Doe,' a Colombian refugee, was one such refugee. His refugee claim in the US was rejected because it wasn’t made within a year of his arrival, despite clear evidence that he would face harm if he were to return to Colombia. And because of the STCA, John Doe couldn’t make a claim in Canada since he had come through the US. If he had come through a different country, his claim would have been heard.

John Doe is one of many refugees who have been turned away since December 2004. Other refugees have been forced to return to harmful situations because their claims have been rejected not on the merit of their cases, but because of where their claims were made. Turning away those in need not only contradicts Canada’s rich history of welcoming strangers, it conflicts with the very core of God’s call to love and justice. Public justice, as CPJ’s past work has shown, means becoming neighbours and welcoming the stranger – turning them away to harmful situations is not part of that mandate.

The court case

In response to the implementation of the agreement, the Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe mounted a legal challenge (see CPJ's article Dismantling the Safe Third Country Agreement for more information). In November 2007, Justice Phelan ruled that the STCA violates the Charter and that because the US does not comply with its obligations under certain sections of the Convention Against Torture and the Convention relating to the Status of Refugees, the Canadian government should not have entered the agreement.

This was good news for the refugee community. However, the federal government has chosen to appeal the ruling, and the court agreed to suspend (stay) Justice Phelan’s decision from affecting the STCA until after the appeal. This means refugees are still being denied access to protection in Canada today.

Andrew Brouwer, one of the lawyers on the case for the Canadian Council for Refugees and a former CPJ staff person, emphasizes that this case is very important for refugees, and says that despite the stay, "Justice Phelan's courageous decision has already made waves...Courts are generally reluctant to interfere with so-called asylum-sharing agreements between countries...What's unique about this case is the Court decided that the Canadian government cannot set up a system to keep refugees out if the foreseeable result is that the excluded refugees are thereby put at real risk of return to persecution, torture or death."

Brouwer’s comments highlight the hope that still exists at the centre of this case: that governments – and citizens – will understand that refugees cannot simply be denied access to protection because of political or administrative convenience. As part of our responsibility to the vulnerable, we must welcome – not turn away – those who need assistance.

Removing the STCA is one hopeful step in welcoming the stranger – we need to ensure our governments continue to take similar steps to keep Canada’s heritage of welcome alive.