Law Times

Page 10 September 24, 2018 • Law timeS www.lawtimesnews.com Controversial treaty signed in 2004 Safe Third Country Agreement challenged again BY MICHAEL MCKIERNAN For Law Times R efugee advocates hope they will be successful in their second attempt to have the Safe Third Country Agreement declared unconstitutional. A previous Charter challenge f loundered at the Federal Court of Appeal in 2008, but some experts say changes in the legal landscape here and the political situation on the ground south of the border give them reason for renewed optimism this time around. The controversial treaty, signed between the U.S. and Canada in 2004, requires refu- gees to seek asylum in the first country in which they land. Because of their recognition of each other as safe, both Canada and the U.S. are required to re- turn claimants who try to cross the border at official ports of entry. Soon after its passage into Canadian law, the Canadian Council for Refugees joined up with a number of other organi- zations to challenge the agree- ment under ss. 7 and 15(1) of the Charter and were initially suc- cessful at the Federal Court of Canada. Janet Dench, the executive director of the Canadian Coun- cil for Refugees, the group at the heart of both challenges, says she is "fairly confident the situation is different" this time. "We have a different con- figuration of the case, and the situation in the U.S. is worse now than it was back then, all of which gives us confidence that we have a very compelling case," she says. In its June 2008 decision in Canadian Council for Refu- gees v. Canada, the Federal Court of Appeal took issue with the application judge's con- clusion that the CCR and two other groups had public interest standing to advance the claim on behalf of refugee claimants, due to their inability to find someone willing to approach the Canadian border to test the law for fear they would be returned to the U.S. "In my respectful view, this hypothetical approach, which the applications Judge enter- tained, goes against the well- established principle that a Charter challenge cannot be mounted in the abstract," reads Federal Appeal Court Justice Marc Noël's decision. While it was possible for a ref- ugee claimant to challenge the agreement in Canada, he found that the lack of a real-life case deprived the court of a "factual basis upon which to assess the alleged Charter breaches." "It follows that the Charter challenge should not have been entertained by the applications Judge," Noël added. This time around, a woman from El Salvador and her two children were able to launch the fresh challenge after they were denied entry at the Canadian border crossing in Fort Erie, Ont. in mid-2017. In the meantime, the fam- ily's return to the U.S. was stayed pending the outcome of the ap- plication. Late last year, Federal Court Justice Alan Diner's decision in Canadian Council for Refu- gees v. Canada (Immigration, Refugees and Citizenship) granted the CCR, Amnesty In- ternational and the Canadian Council of Churches public in- terest standing as parties in the case. According to Dench, the Supreme Court of Canada's 2012 decision in Canada (At- torney General) v. Downtown Eastside Sex Workers United Against Violence Society was crucial to its success in achieving public interest standing. Sean Rehaag, a professor in immigration and refugee law at Osgoode Hall Law School, says the outlook for the most recent challenge is good, especially considering the current U.S. ad- ministration's hostile approach to refugees and migrants under President Donald Trump. "The last time the Federal Court looked at the issue, they found the U.S. was not a safe country, and I think it's pretty clear it's less safe today than it was then," he says. Dench says the new test set by the top court's ruling signifi- cantly lowered the bar to achiev- ing standing in Charter cases by forcing groups only to prove that the case raises a serious justi- ciable issue, that they have a real stake in the issue and that the application is a "reasonable and effective way" to bring it before the court. Dench says she hopes a full hearing on the merits will pro- ceed in early 2019. "It's taking a long time be- FOCUS Janet Dench says she is 'fairly confident the situation is different' in the second attempt to have the Safe Third Country Agreement declared as unconstitutional. See More, page 12 © CCR/Adaha John The last time the Federal Court looked at the issue, they found the U.S. was not a safe country, and I think it's pretty clear it's less safe today . . . Sean Rehaag Well-known condominium authority Audrey Loeb brings you up to date on all the opportunities and challenges of the Condominium Act, 1998, as well as other complex issues arising in condominium law. New to ProView The eBook will now be available on the Thomson Reuters ProView® platform, a professional eBook experience. As the legislation is updated, we'll keep you current with ongoing updates. Access your online subscription on ProView through your computer, smartphone, or tablet. 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