On Wednesday, Federal Court Judge Ann Marie McDonald declared that Canada’s Safe Third Country Agreement (STCA) with the United States is invalid. This, at least, is the version of the story being told in quickie newspaper accounts. But judges don’t make foreign policy, right? Technically, it’s the Canadian laws implementing the treaty that will be nullified if McDonald’s ruling holds up.
It might seem like a pedantic point, but the ruling in Canadian Council for Refugees vs. Canada was immediately received in the United States as … well, more or less as the deed of a heroic Canadian judge making first-class, righteous anti-Trump foreign policy.
The petitioners in the case were refugee claimants from El Salvador, Ethiopia and Syria who had originally been awaiting adjudication of their claims in the United States. Upon finding after some experience of the U.S. that it might not be what they expected, or realizing that their particular claims might have a better chance before Canadian authorities, they tried to cross our U.S. border and re-file here. This is the venue-shopping behaviour that the STCA is intended to forbid.
The recognized law of nations allows for this, because the ability to venue-shop would encourage every refugee to file claims in as many countries as possible, leading to possible administrative disaster if nothing else. In our own law the Charter of Rights and Freedoms applies to a person the moment their foot touches Canadian soil — our Supreme Court settled that one in 1985 — but Canada can exclude foreigners in a fashion that is otherwise charter-compliant; the per-se right to enter Canada is restricted to citizens. We also can, and do, detain refugee claimants for initial scrutiny if we have doubts about their bona fides.
So what was the problem with the STCA? The issue is that refugees trying to enter Canada to venue-shop are being detained by the U.S. authorities when we deflect them , and this makes our border cops responsible for what happens to those people in the U.S. The detention is all but automatic. Most such refugees end up in custody for anywhere from two weeks to two months.
The key appellant in the ruling is Nedira Mustefa, an Ethiopian who had been living in Georgia on a visitor’s visa from the age of 11 on. After her eligibility to stay in the U.S. as a student ran out, things got much worse in Ethiopia for her Oromo ethnic group, so she decided to try for a fresh start in Canada. But when she got bounced at the border she found herself in New York State’s Dannemora prison, kept in solitary confinement for a week while undergoing a test for tuberculosis. She testified by affidavit that the facility was cold and that she couldn’t bear the prison food, suspecting the presence of pork. She was released on bond after a month.
This brings Section 7 of the charter into play. In the court’s view the poor treatment of Mustefa by American authorities — treatment that is quite routine, according to many other expert affidavits and personal testimonies received as evidence by McDonald — is Canada’s responsibility. The question thus becomes whether her detention can be justified by the administrative objectives of the STCA. No one knows what the effect of suspending the implementation of the STCA here will have. It might depend on what happens in November’s presidential election down south.
In a trial setting, where Sec. 7 violations are being tested for proportionality with an administrative goal, you might expect close, careful analysis of the effects of thwarting that goal. We have an elected government, and an absolutely gigantic immigration system, and a populace much concerned, one way or another, with immigration levels. The refugees we have already admitted have interests that might be compromised if the STCA goes out the window. Many are dependent on both state welfare and charity.
The Canadian laws implementing the Safe Third Country Agreement have been put on a six-month death clock
McDonald gave all of this careful thought. Here’s her analysis, which fits neatly into paragraph 147 of the judgment:
“The (government) respondents’ strongest argument to justify the STCA is the sustainability of the refugee system in Canada if the number of claimants were to increase. However, in my view, the evidence offered by the respondents on this point is weak. In the past, Canada has demonstrated flexibility to adjust to fluctuations in refugee numbers in response to needs.”
And that’s about it. McDonald is personally pretty sure everything will be OK. Perhaps we could all stand to take a lesson from her optimism. How you feel about having the “flexibility” of our bureaucracy and our welfare institutions tested in this fashion is up to you — but let’s face it: there is not a thing you can do about it, even with your vote, for a judge has spoken.
The Canadian laws implementing the Safe Third Country Agreement have been put on a six-month death clock. The federal government will have to take the case to appeal and win, or fiddle with the law, if it wishes to avoid the consequences of annihilating those laws. I suppose we’ve all got bigger things to worry about in the meantime.
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