U.S.-Canada agreement on refugees is now unconstitutional
Sean
Rehaag, The Conversation, June 13, 2018
Since
President Donald Trump’s election there has been much discussion about the Canada-U.S.
Safe Third Country Agreement. Under this agreement, asylum seekers
at land border crossings are turned back to the United States without having
their refugee claims heard in Canada.
President Donald Trump’s election there has been much discussion about the Canada-U.S.
Safe Third Country Agreement. Under this agreement, asylum seekers
at land border crossings are turned back to the United States without having
their refugee claims heard in Canada.
 |
| A group of asylum seekers arrive at the temporary housing facilities at the border crossing Wednesday May 9, 2018 in St. Bernard-de-Lacolle, Quebec. Thousands of asylum seekers came into Canada illegally across the Canada-U.S. border in the first quarter of the year, but only a fraction were removed from the country during that time. THE CANADIAN PRESS/Ryan Remiorz |
The 2002
agreement only applies at official land border crossings. Thousands
of asylum seekers who are already in the United States circumvent the agreement
by crossing the Canadian border at irregular sites, including
Roxham Road in Québec. Politicians continue to debate how to best
respond.
The Liberal
government wants to renegotiate an expanded agreement — though recent events
suggest international negotiations with the U.S. are fraught with difficulties.
It’s also safe to assume Trump will not
agree to expand an international treaty preventing asylum seekers
from leaving the U.S. for Canada.
government wants to renegotiate an expanded agreement — though recent events
suggest international negotiations with the U.S. are fraught with difficulties.
It’s also safe to assume Trump will not
agree to expand an international treaty preventing asylum seekers
from leaving the U.S. for Canada.
The
opposition Conservatives
say Canada should unilaterally expand the agreement by declaring the entire
U.S. border to be an official border crossing. This is a fantasy. Canada cannot
send people to the United States without the U.S. agreeing any more than other
countries can send people to Canada without permission.
opposition Conservatives
say Canada should unilaterally expand the agreement by declaring the entire
U.S. border to be an official border crossing. This is a fantasy. Canada cannot
send people to the United States without the U.S. agreeing any more than other
countries can send people to Canada without permission.
The NDP
proposes scrapping or suspending the agreement, arguing that the U.S. is no
longer safe for refugees.
proposes scrapping or suspending the agreement, arguing that the U.S. is no
longer safe for refugees.
On this
point, the New Democrats are supported by Amnesty
International, the Canadian
Civil Liberties Association and over 200 law
professors across the country. But civil servants are worried this
might increase the number of asylum claimants coming to Canada, straining the
refugee determination system’s limited resources.
point, the New Democrats are supported by Amnesty
International, the Canadian
Civil Liberties Association and over 200 law
professors across the country. But civil servants are worried this
might increase the number of asylum claimants coming to Canada, straining the
refugee determination system’s limited resources.
Illegal
U.S. asylum policies
U.S. asylum policies
These
political debates are now largely irrelevant. People can reasonably disagree
about whether the agreement was ever good policy, but after a series of
announcements by U.S. officials in recent weeks, the agreement cannot stand
constitutional scrutiny in Canada.
political debates are now largely irrelevant. People can reasonably disagree
about whether the agreement was ever good policy, but after a series of
announcements by U.S. officials in recent weeks, the agreement cannot stand
constitutional scrutiny in Canada.
As has
been widely
reported, the U.S. has instituted a policy of detaining asylum
seekers and separating children from their families. This policy aims to
discourage irregular migration. It is also illegal.
been widely
reported, the U.S. has instituted a policy of detaining asylum
seekers and separating children from their families. This policy aims to
discourage irregular migration. It is also illegal.
The
policy violates international
refugee law, which prohibits penalties on asylum seekers for
irregular arrival. It violates international
human rights law, which protects the integrity of the family. It
violates international
law relating to children, which requires the bests interests of
children be considered when applying government policy and that children only
be detained as a last resort.
policy violates international
refugee law, which prohibits penalties on asylum seekers for
irregular arrival. It violates international
human rights law, which protects the integrity of the family. It
violates international
law relating to children, which requires the bests interests of
children be considered when applying government policy and that children only
be detained as a last resort.
Beyond
being illegal, it’s also just plain wrong. Canada’s experience with the
devastating intergenerational
harms caused by the shameful removal of Indigenous children from
their families offers a window into just how immoral this policy is.
being illegal, it’s also just plain wrong. Canada’s experience with the
devastating intergenerational
harms caused by the shameful removal of Indigenous children from
their families offers a window into just how immoral this policy is.
If that
wasn’t enough, the Trump administration announced
on June 11 that refugees facing persecution due to domestic violence or gang
violence will no longer receive asylum. Again, this leaves the U.S. in breach
of international refugee law.
It also conflicts with Canadian
interpretations of refugee law.
wasn’t enough, the Trump administration announced
on June 11 that refugees facing persecution due to domestic violence or gang
violence will no longer receive asylum. Again, this leaves the U.S. in breach
of international refugee law.
It also conflicts with Canadian
interpretations of refugee law.
Putting
these announcements together, here is where we stand: some people who meet the
refugee definition under Canadian law, if sent back to the U.S., are likely to
be detained, separated from their children and deported to face persecution.
these announcements together, here is where we stand: some people who meet the
refugee definition under Canadian law, if sent back to the U.S., are likely to
be detained, separated from their children and deported to face persecution.
In this
context, there is now no longer any question the agreement — at least as it is
applied to refugees facing domestic violence or gang related violence — is
unconstitutional under Canadian law.
context, there is now no longer any question the agreement — at least as it is
applied to refugees facing domestic violence or gang related violence — is
unconstitutional under Canadian law.
Safe
Third Country Agreement Unlawful
Third Country Agreement Unlawful
Regardless
of political persuasion, no one who takes Canadian constitutional law seriously
can contend Canada can lawfully send a person who meets the Canadian refugee
definition to a country where they will be detained, separated from their
children and then deported back to the country where they face persecution.
of political persuasion, no one who takes Canadian constitutional law seriously
can contend Canada can lawfully send a person who meets the Canadian refugee
definition to a country where they will be detained, separated from their
children and then deported back to the country where they face persecution.
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|
In this
photo from April 17, 1982, the Queen and Canadian Prime Minister Pierre Trudeau sign Canada’s constitutional proclamation. Guarantees under Canada’s Charter of Rights and Freedoms are now threatened by the Canada-U.S. Safe Third Country Agreement. The Canadian Press/File photo
|
Indeed,
it may not be possible for Department of Justice lawyers to even argue in court
that the agreement is constitutional without breaching professional obligations
as lawyers and civil servants. And any lawyers asked to do so should take a
long hard look at the experience of others who have defended the undefendable
elsewhere — such as lawyers who argued that torture was a lawful response to
national security concerns or lawyers who defended apartheid in South Africa.
it may not be possible for Department of Justice lawyers to even argue in court
that the agreement is constitutional without breaching professional obligations
as lawyers and civil servants. And any lawyers asked to do so should take a
long hard look at the experience of others who have defended the undefendable
elsewhere — such as lawyers who argued that torture was a lawful response to
national security concerns or lawyers who defended apartheid in South Africa.
So there
are now only two options. The government can take proactive measures and
suspend or scrap the agreement — thereby restoring the orderly processing of
refugees that existed prior to the agreement — or the government can wait for
the courts to strike the agreement down as unconstitutional.
are now only two options. The government can take proactive measures and
suspend or scrap the agreement — thereby restoring the orderly processing of
refugees that existed prior to the agreement — or the government can wait for
the courts to strike the agreement down as unconstitutional.
Prime
Minister Pierre Trudeau gave Canada the Charter of
Rights and Freedomsin 1982. Prime Minister Justin Trudeau must now
decide whether his government will take steps to protect those rights or
whether he will do nothing and make the courts do it for him.
Minister Pierre Trudeau gave Canada the Charter of
Rights and Freedomsin 1982. Prime Minister Justin Trudeau must now
decide whether his government will take steps to protect those rights or
whether he will do nothing and make the courts do it for him.
Either
way, the Canada-U.S. Safe Third Country Agreement is dead.
way, the Canada-U.S. Safe Third Country Agreement is dead.
