Law Times

www.lawtimesnews.com Page 10 March 10, 2008 / Law TiMes SCC will likely get final word Safe Third Country Agreement heads to appeal A lthough it was quashed by the Federal Court last year, the legal community will have to wait to learn what will happen to the three-year-old Safe Third Country Agreement (SCTA), as it's heading to the Federal Court of Appeal. The agreement between Canada and the United States, which took effect in December 2004, requires refugee claimants to request protection in the first safe country they arrive in, unless they qualify for an exception. Exceptions can include unaccom- panied minors, family members, document holders, and public- interest situations. However, the legislation was challenged in the Federal Court a year later by the Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and a Colombian asylum seeker, referred to as John Doe, who claimed that the des- ignation of the U.S. as a "safe third country" for asylum seekers was "invalid and unlawful." They argued that the preconditions to the regulation authorizing the Safe Third Country Agreement were not met, because "the U.S. does not comply with certain international conventions pro- tecting refugees and prohibit- ing returning people to places of torture," according to the Federal Court decision. The agreement has had a significant effect on the num- ber of refugee claimants in Canada, notes Audrey Macklin, a professor with the University of Toronto Faculty of Law. "Between 30 and 40 per cent of refugee claimants in Canada had entered via the Canada- U.S. land border prior to this agreement. So after this agree- ment, the number of refugee claimants in Canada dropped by about 30 per cent," she says. Federal Court Justice Michael Phelan struck down the agreement in November, ruling it ultra vires, as con- ditions to the enactment of the agreement's regulations had not been met. The judge further ruled that the govern- ment "acted unreasonably in concluding that the United States complied with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture"; that the gov- ernment "failed to ensure the continuing review" of U.S. practices and policies; and that the agreement's operation is contrary to ss. 7 and 15 of the Charter. "The United States' poli- cies and practices do not meet the conditions set down for authorizing Canada to enter into a STCA. The U.S. does not meet the Refugee Convention requirements nor the Convention Against Torture prohibition (the Maher Arar case being one example). Further, the STCA does not comply with the relevant provi- sions of the Charter. Finally, the Canadian government has not conducted the ongoing review mandated by Parliament despite both the significant passage of time since the commencement of the STCA and the evidence as to U.S. practices currently available," he wrote. Some of the elements on which the designation was challenged, says Macklin, include that it imposes a one- year deadline on applications for asylum and the uncertainty in the recognition of gender- based asylum claims. Phelan issued his final order in January, ruling that the agree- ment would be quashed as of Feb. 1; however, the Federal Court of Appeal has granted a stay of the order as the govern- ment is appealing the case. Chief Justice John Richard noted: "The issues in this appeal deserve full appellate review on their merits before ordering a suspension of the Safe Third Country Agreement between the Government of Canada and the Government of the United States of America." The applicants recently said in a press release they are con- sidering whether to appeal the decision to grant the stay. Sharryn Aiken, an assistant professor with Queen's University Faculty of Law, says that, as the matter is under appeal, we won't know the long-term significance of the Federal Court decision until a final decision is reached. "I expect this is the type of matter that will likely go up to the Supreme Court of Canada for decision, regardless of who is successful at the Federal Court of Appeal," she says. She says it is likely to be at least a few years before the final word comes down. "The government has a very large stake in maintaining this Safe Third Country Agreement with the United States and is very unlikely to accept the agreement being struck down," she says. She notes the Federal Court decision was celebrated by the immigration bar and refugee- advocacy community. "Since the Safe Third Country Agreement has been enacted, there's been an ongoing critique of its detrimental effects on . . . Canada's reputation as a country that seeks to protect refugees," she says. The argument the applicants are making, says Aiken, is not that the United States is unsafe for refugees for all time, "but that it is unsafe right now, and that at this particular time in history, at this moment in history, it is unconstitutional for Canada to be implementing a Safe Third Country Agreement with the United States." Indeed, the way in which the parties sought to prove or dis- prove the U.S. was a safe third country was essentially through a battle of the experts, says Macklin. These included U.S.- and Canadian-based academic, human rights, refugee law, and government experts. "What the Federal Court found after reviewing all of this evidence was that, in general, the experts of the applicants were more credible, were stronger, were better detailed, explained; they were just more cogent than the evidence of the government's experts," she says. "On that basis, the court deter- mined that the United States was not, in fact, a safe third country for asylum seekers and, there- fore, the governor in council had exceeded its power — that is, had acted ultra vires in so designating the United States," she says. While the case deals with Charter issues, Macklin notes it is important to emphasize that the case was about the compli- ance of cabinet with its statutory mandate, and the decision was "based on an assessment of the evidence brought to bear on the United States' compliance in law and practice." In some ways, says Macklin, the Federal Court ruling could be understood as a straightforward decision on public law grounds and factual determinations. "The decision of Justice Phelan was a straightforward assessment of evidence and I think it stands up as such," she notes. "Whether the Federal Court of Appeal will approach the case with the same atten- tion to the facts, the evidence, and the legal principles, apart from and independent from the kind of foreign policy cloud that hangs over this, is of course anybody's question." FOCUS 'I think we're learning through the inquiry that there's broader systemic issues with forensic pathology evi- dence that need to be addressed,' says Joseph Di Luca. BY HELEN BURNETT Law Times With over 20,000 Office Products finding what you want is easy. 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