The Vega family from Colombia stands on the rooftop of St. Andrew’s Norwood United Church in St-Laurent, where they were granted sanctuary for 567 days before being granted refugee status. Photo courtesy of Darren Ell

Like thousands of other Colombians, Doe claims he will face persecution if he is deported to his war-torn country.

In 2000, he made his way to the alleged safety of North America, only to be denied the right to even apply to seek asylum in the United States.  And based on the Safe Third Country Agreement, he is also prohibited from filing a claim in Canada, because he landed first in the United States. 

The bilateral agreement, signed in the hyper-security environment following 9/11, dictates that refugees arriving in Canada or the United States by land must make a claim in the first country they enter.

But a recent Canadian court decision holds promise for Doe, and its outcome could mean a radical shift in Canada’s refugee policy, improving the fate of thousands of refugees.

Along with human rights organizations, such as Amnesty International, Doe appealed to Canada’s Federal Court, challenging the legitimacy of the Safe Third Country Agreement under the Constitution and the Canadian Charter of Rights and Freedoms.  Doe’s real identity was protected because he was hiding in the United States.

 The court agreed with the challenge and ruled the United States does not meet the conditions necessary to be considered a safe country for refugees.  The Federal Court gave its final decision to overturn the agreement on Jan. 17.

“The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture prohibition,” wrote Federal Court Justice Michael Phelan in his decision.  “Further, the (agreement) does not comply with the relevant provisions of the Charter.”

The ruling confirmed what refugee advocate organizations have long been arguing.

“Amnesty International has always been concerned about the naming of the United States as a safe third country,” said Gloria Nafziger, a refugee coordinator with the human rights organization.

The political challenge

Phelan cited a number of reasons why the United States failed the required conditions, including its reliance on detention, expedited removals and the application of a maximum one-year filing period.

“I think there were very good arguments made before the court that the United States and Canadian systems are different . . . that the US system doesn’t meet international standards,” said Nicole LaViolette, a law professor at the University of Ottawa, who specializes in human rights and refugee law.  “There are very serious distinctions between Canada and the United States,” she said.

Citing a case that would resonate with many Canadians, Phelan expressly referred to the example of Maher Arar, a Canadian citizen who was detained in the United States, deported to Syria, and tortured.

Peter Showler, a former chair of the Immigration and Refugee Board of Canada and current director of the Ottawa-based Refugee Forum, said he agrees with this rationale. “The United States is prepared to return people to torture, whereas Canada does not.”

The court decision is currently being appealed by the Federal Government as was expected by many refugee advocates.  “The biggest challenge is the political challenge, because it isn’t correct to say that the US is not a safe country,” said Nafziger.

The agreement will remain in effect while under appeal, based on a stay granted by the Federal Court of Appeal on Jan. 31.

All of this spells continued uncertainty for Doe and thousands of other refugees as the fate of the regulations remains unknown.

At the time of its implementation in 2004, the Canadian government claimed the agreement would allow for better management of the flow of refugees at the shared land border.  The regulations do provide for some exceptions including family members, unaccompanied minors, and claimants from countries such as Afghanistan, Haiti and Rwanda, places for which Canada has imposed a suspension of deportations.

But refugee rights advocates say the agreement has had a devastating effect on the whole refugee system.

“There is absolutely no doubt that the Safe Third Country Agreement did cause a significant decrease in the number of refugees into Canada,” said Showler.

Disproportionate impact

Given the nature of the regulations, it soon became evident that the impact would hit some refugee populations much harder than others.

“It is especially most stark on the continuous continents here of South and North America,” said Ed Wiebe, refugee coordinator for Mennonite Central Committee Canada, a social justice organization that offers support to refugee claimants.  He cites the case of Colombian claimants, such as Doe, as particularly insightful into the consequences of the agreement.

In 2004, the year preceding the introduction of the Safe Third Country Agreement, Colombia was the top country of origin for refugee claimants coming to Canada.  97 per cent of these applicants made their claim at a land border, compared with an overall border claims rate of just 35 per cent.  This was largely due to the severe difficulty in traveling to Canada from Colombia without first passing through the United States.

“A Colombian may be sponsored from Bogota and have family elsewhere on the continent . . . So you may have them hop on a bus and head to Canada,” said Wiebe.

According to the Canadian Council for Refugees, the number of Colombian applicants during the first year of the agreement dropped to just 30 per cent of the claims filed the previous year.

 “Lots of them had legitimate claims but they couldn’t step over the border and make the claim anymore,” said Wiebe.

However, an even bigger concern for refugee advocates has been the different acceptance rates of Colombian applicants by Canada and the United States.

In 2004, the rate of acceptance of Colombian refugee claimants in Canada was 81 per cent.  That same year, the United States accepted only 45 per cent of those who made an affirmative asylum claim.  That number fell to just 22 per cent for claimants who appeared before an American immigration judge.

This disparity has led to an increased phenomena that is equally concerning for refugee advocates.  Since the Safe Third Country Agreement applies only at land border crossings, refugees are often willing to take desperate measures to enter Canada illegally in order to make an in-land claim.

“What we’ve seen is refugee-accepting countries placing road blocks.  This leads to an increase in human smuggling. The Safe Third Country Agreement is one more obstacle that forces people to use illegal means to get into the country,” said LaViolette. 

While the agreement is still in effect, this increased danger is likely to continue, which is why refugee advocates are hoping the appeal will happen quickly and ultimately uphold the current decision.

But while they are confident in the legal arguments, some advocates have less faith in the next step of the legal process.

 “I’m pessimistic,” said Showler.  “The Federal Court of Appeal is more deferential to government policy on refugee issues . . . its decisions have been far more conservative than decisions of the Federal Court.”

No matter the ruling of the appellate court, he says a leave to appeal to the Supreme Court of Canada is likely.  Given the wide implications of the case, he said he thinks the court would hear the case and the outcome could be positive.

“The Supreme Court of Canada is certainly more confident in striking a balance between human rights interests and government policy. The Supreme Court tends to have a more balanced approach to refugee issues than the Federal Court of Appeal.”

While the involved parties are quite pleased with the original decision, they are also realistic about the lengthy time delays involved in the process and the effects it is having on the Canadian refugee system.

“There is a long road to a conclusion on this decision.  This story hasn’t ended,” said LaViolette.

For Doe and thousands of other refugees, their stories continue as well.  While the case winds its way through Canadian courts, they wait outside the border to hear how their fate will be determined.