Federal court hears case on whether asylum agreement with U.S. violates charter

Dozens of protesters gathered outside a federal court on Monday called for Canada's asylum agreement with the United States to be suspended, arguing the U.S. is no longer a safe country for refugees.

The lunch-time protest in downtown Toronto was timed to coincide with a court hearing of a legal challenge to the Safe Third Country Agreement, which prohibits people from entering Canada from the U.S. and vice versa at official border crossings and asking for asylum.

The protesters held up signs that read "The USA is not safe" and "Uphold all laws that protect refugees," at times chanting "Suspend the agreement" and other slogans.

Kikome Afisa said her own experience as an asylum seeker who arrived through the U.S. compelled her to speak out.

Afisa, who left Uganda fleeing government oppression and violence, said she was detained for four months after crossing into the U.S. from Mexico. She said she later came to Canada through an irregular crossing in Quebec, believing it to be safer here. Afisa said she has applied for asylum and is awaiting a hearing.

'The U.S. is not safe'

"The U.S. is not safe ... No help, no shelter, nothing. You can stay outside on the street because you don't have nothing when you're a refugee. You come from your country because of some problem, you don't have money," she said, at times wiping away tears.

Afisa said there was also the looming fear of being sent back to Uganda. "I'm looking to be safe but they take you back away," she said.

Another protester, Susie Henderson, said refugees don't have much choice regardingwhere they arrive, adding recent images of American detention centres should be enough to show the country is not safe for asylum seekers.

"Things like the Safe Third Country (Agreement) just create barriers for people who already face too many barriers," she said.

As the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration mean the U.S. is no longer a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case are arguing this week as the Federal Court finally hears the challenge begun in 2017.

'Cruel and unusual'

"Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection," reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the safe third country deal.

Her attempt to enter Canada came as then newly elected U.S. President Donald Trump was unveiling a series of changes to the U.S. immigration system, including an attempt to ban immigrants from Muslim countries and lifting stays on deportations to Central American nations.

The measures set off shock waves not just in the U.S. but also in Canada, even among those who don't work in the immigration field, said Janet Dench, the executive director of the Canadian Council for Refugees, one of the groups challenging the agreement in court.

"Many Canadians ... instinctively felt it didn't make sense for Canada to be hitching its wagon to the United States in this way and be sending people back to the U.S. when they could see there was such a lack of attention to the basic rights," she said.

While political pressure began building for changes to the deal, the CCR and others also decided to test it in court and worked to find an asylum seeker who had been turned away.

Since the case was launched, restrictions on asylum have tightened even further, including a decision in 2018 by the U.S. attorney general to deny asylum claims based on domestic violence. One of the arguments in the case is that decision effectively leads to discrimination toward refugee applicants on the basis of their gender, which would violate the charter.

Ottawa wants the case dismissed

But the federal government argues that position, and others taken by the applicants, relate to developments in the U.S. refugee system that don't apply to the case at hand. The U.S. system still functions, they argue, and the government wants the case dismissed.

"Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year, and is subject to both administrative and judicial checks and balances," lawyers for the Immigration and Public Safety ministries wrote in their submission to the Federal Court.

"Many of the concerns raised by the applicants have been limited by American courts or are still undergoing legal challenges, have no application to (Safe Third Country Agreement) returnees, and/or do not preclude access to protection."

The applicants hope the court either suspends the deal or forces it to be amended in such a way that allows those seeking asylum to ask for it.

It doesn't mean asylum will be granted, said Justin Mohammed, Amnesty International Canada's human rights, law and policy campaigner. The goal is just for people to have a way to ask.

Some 45,000 people have crossed into Canada from the U.S. between formal border offices to claim asylum in the last two years.

The subsequent pressure that placed on immigration and social services has made the agreement a political flashpoint, with New Democrats and Conservatives demanding the agreement be amended or suspended. During the recent election campaign, the Liberals promised they would work with the U.S. to try and "modernize" the deal.

It's not the first time the agreement has been subject to legal scrutiny. In 2007, it was also challenged in Federal Court, and the U.S. was declared not safe for refugees, but the decision was overturned on appeal.

This week's hearing is expected to run until Friday.