The United States Refugee Law Tried in Canada

The Federal Court just released an amazing judgment which has received some reasonable play in the press but which, in fact, has not received anywhere near the attention it deserves. The case was a challenge to an agreement between Canada and the United States that allows Canada to essentially immediately, without a hearing or review, return refugee claimants who come to Canada through the United States to be processed in that country's asylum system rather than Canada's. The challenge essentially forced the Court to try the question of whether or not the United States' asylum laws satisfied basic international law norms and Canada's Charter of Rights and Freedoms. In a lengthy judgment, Mr. Justice Michael Phelan essentially said that the United States' legal system failed on both counts.

Justice Phelan held that the United States' approach to refugees, particular around its treatment of people even distantly, unwittingly or peripherally linked to what the USA PATRIOT Act now describes as terrorism offends basic international norms (which are binding on Canada) governing not returning people to countries where they face the threat of torture or other such dangers (a principle called non-refoulment -- gotta love these international lawyers). Justice Phelan found the system also deprived the refugees (remember they have ended up in Canada and so have some level of Charter protection) of their right to 'life liberty and security of the person". in the case of refugees fearing persecution because of sexual orientation, the Court also held that the United States' approach to claims based on this sort of persecution meant that it would offend the equality rights contained in the Charter to ship these folks off to the United States to be dealt with there.

It will be interesting to see how this judgment will be dealt with on appeal (and it will be appealed). I expect there is a real chance that the appellate courts will overturn the decision but will do so in a way that will leave the government in a bit of pickle. I doubt that the judges will overturn Justice Phelan's findings about the inadequacies of the the United States' legal system. Instead they will likely say that this agreement is fundamentally political in nature and absent evidence that the United States is an absolute despotic, dictatorship -- please be quiet out there Noam, we know your views on these matters but no court will accept them -- the Courts should not interfere with the decision to make such an agreement.

The difficulty that this will pose for the government is that it will be faced with the findings that the US system is fundamentally at odds with basic international law norms around the treatment of the most endangered people; is inconsistent with the basic norms we have around life, liberty and security of the person and discriminatory and nevertheless we ship people back there to face deportation to torture and death. It is no accident that Justice Phelan specifically cited the Arar case to cast doubt on the United States' approach to deportation and its possible motives in dealing with people merely suspected of terrorism. What does a government do with all of that?