12.01.2007

canadian judge: u.s. is not safe country for refugees

We had some excellent news from the Canadian federal court this week.

In a surprise decision, the court recognized that the United States is not a safe country for refugees, because it deports people to countries that torture.

This means the refugee treaty between the US and Canada - the so-called Safe Third Country Agreement - has been nullified.
Canada will no longer have the right to turn back asylum seekers at the American border under a federal court ruling that deems the United States not a safe country for refugees – opening the door for a potential flood of northbound claimants.

In a surprise judgment yesterday, the court concluded that the three-year-old Safe Third Country Agreement – which denies refugees who have landed first in the U.S. the right to later seek protection in Canada, and vice versa – breaches the rights of asylum seekers under the United Nation Refugee Convention or the Convention Against Torture.

"The interest at stake is highly important to an individual's life, safety and dignity," wrote Justice Michael Phelan.

"I would therefore conclude that the designation of the U.S. as a safe third country leads to a discriminatory result, in that it has a much more severe impact on persons who fall into the areas where the U.S. is not compliant with the Refugee Convention or CAT (Convention Against Torture), as well as discriminating and exposing such people to risk based solely on the method of arrival in Canada."

Refugees arriving in Canada by air, rather than by land, have continued to have the right to remain in Canada while awaiting a ruling on their claim.

The reasoning issued yesterday, which will essentially nullify the agreement with a final court order expected early next year, is a huge victory for refugee advocates, including the Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe, a failed Colombian refugee claimant in the U.S., who brought the declaration application to the court.

Activists have long complained that the agreement, which requires refugee claims in Canada and the U.S. to be processed in the country where asylum seekers first land, is unfair and unconstitutional.

"We are somewhat surprised but very pleased with the decision, which is basically everything that we've been looking for," said lawyer Andrew Brouwer, who, along with Barbara Jackman, Leigh Salsberg and Lorne Waldman, represented the applicants.

"This is a vindication of the rights of refugees that we haven't seen around the world in a while."

Ottawa is pondering its options, and says that the treaty remains in effect for now. But with rumours of a spring election, they don't have much to go on.

Canadian wingnuts will be fuming over activist judges and a potential influx of immigrants. But most Canadians will be proud their country is still a safe haven for those lucky enough to make their way north.

I can't help but wonder what this ruling might mean for our Campaign. It can't hurt.

14 comments:

M. Yass said...

Well, Canada, after all of the recent bad stuff in the media, this is your first step on the road to redeeming yourself, eh?

And this should help to renew our faith in Canada as being a country that eventually does come around and does what it knows to be the right thing.

L-girl said...

Canada as being a country that eventually does come around and does what it knows to be the right thing

That seems often to be a central difference between Canada and the US. Maher Arar's terrible story would be a good example.

Here's hoping one day we say that about the war resisters.

M. Yass said...

Maher Arar's terrible story would be a good example.

That's exactly the case I was thinking of. Maher Arar got $10M in compensation, his legal bills paid and the RCMP commissioner paid with his job. And no less than my favourite Canadian politician has lobbied for his removal from U.S. terrorism watch lists. Small compensation, to be sure, for his horrible ordeal, but at least Canada has done something for him.

Now if we can just convince Canada to do the right thing by imprisoned child soldier Omar Khadr . . .

By contrast, his lawsuit against the U.S. was dismissed on specious "state secrets privilege" grounds. Hopefully the Second Circuit will put an end to that nonsense, but I'm not optimistic. I am especially not optimistic about Scalito-Thomas-Roberts-Kennedy upholding such a favourable ruling, but we'll see.

Here's hoping one day we say that about the war resisters.

Okay, here's what I want to know: Seemingly every other CBC news story is about Canada's "booming economy" and "massive labour shortages," particularly in Alberta. What, then, is wrong with bringing in a few hundred husky young men who probably are only too willing to work their butts off?

Despite wingnut propaganda to the contrary, Canada is not and should not be threatened by these people. I suspect that is why it still takes something like nine months for CIC to approve a temporary work permit.

L-girl said...

Despite wingnut propaganda to the contrary, Canada is not and should not be threatened by these people.

I think most Canadians know that. That's not really the issue. It's the Canadian govt potentially pissing off the US.

I personally don't think the US will make a big deal over this b/c they'd rather not draw attention to the resisters, or even admit their resistance as a growing phenom.

Many of us also feel the Liberals could use this issue as a wedge, to distinguish themselves from the Tories, and to show independence from the US (whether or not such independence exists).

Lone Primate said...

I think at the heart of the matter is the fact that, technically, desertion is illegal in Canada. Draft dodging wasn't, because we didn't have the draft. But any government has to be careful not to imply that it's okay to join an armed forces and then decide what it does is against your principles. I understand what's at stake here, and I do personally feel these people should be allowed to stay because they've not defending anything, they're engaged in an illegal war of aggression. But we have troops in Afghanistan. I wish we didn't, but we do. And that has to weigh in any official decision the Canadian government takes.

The courts were on the hook for this one. First and foremost, desertion's illegal, and you can be extradited for it. The level after that was, was the desertion justifiable? We all here believe it was, but the courts don't seem to agree, which is disappointing.

And so this case comes immediately afterward seemingly at odds with what we've just heard. Does the United States have an official moral "conscience" in concord with Canada's, or at odds? Officially, it could be argued these cases are unrelated, but I think they ARE linked in the minds of most Canadians because they both hinge on the same thing: persecution for beliefs, and leaving another country for Canada as a result.

It's hard to say how it will play out, but I get the feeling some corner has been turned lately and we've hit the white line on liberalism in this generation. Things have changed a lot in the last few years and I wonder if the country doesn't want to take a breather for a while and just let stuff settle. To be honest, I'd be disappointed but not surprised if this latest decision were reversed on appeal as the borders all get locked down. But I guess we'll see.

Ultimately I guess the best advice to young people in the States is, if you don't want to wind up donig something you know you don't want to do, don't join the armed forces. It really does look like a deal with the devil: once you've sold your soul, you're owned for good. You've surrendered your liberty and your free will. It really does remind me of times when Romans would sign themselves into slavery to get out of debt or poverty.

L-girl said...

I think at the heart of the matter is the fact that, technically, desertion is illegal in Canada.

The Iraq War is illegal in Canada.

Draft dodging wasn't, because we didn't have the draft.

Vietnam War deserters were taken in during the 60 and 70s - tens of thousands of them. It wasn't just draft dodgers.

But we have troops in Afghanistan.

They are there voluntarily, and with international consent.

The courts were on the hook for this one. First and foremost, desertion's illegal, and you can be extradited for it.

But that wasn't part of the court's decision. It didn't factor in.

But more importantly, this will be decided in the political sphere, not the judicial one.

Ultimately I guess the best advice to young people in the States is, if you don't want to wind up donig something you know you don't want to do, don't join the armed forces.

A, that doesn't much help the people already fleeing the war and B, it doesn't take in the reality of the US.

For more about those issues, read my post here.

M said...

It's kind of ironic to read this, and your post about PTSD (well, for me anyway) because thanks to stumbling onto your site I have been looking into moving to Canada (again, more seriously this time) and have been so excited to read through your posts and find people like me. But as I was reading through the CIC site I've just learned that Canada doesn't want me to emigrate because I have a disability. Not that that's your fault or anything but I'm quite shocked at this policy (apparently deaf people have been descriminated against and turned away...deaf people?? that's so crazy to me). I guess any of my lefty-utopia illusions have just been brought down to Earth. That probably means I'll have to look elsewhere if I want to live in a country I feel is more in line with my values (shocked and saddened to find Canada not being very progressive on this issue). Anyway, sorry to ramble on like this (and off-topic on a first post)! I am so glad that you are finding Canada to be so much of what you had hoped it to be even if I'm not :) ....and just in case, no I'm not a right-winger doing that "masking" thing...I'm a sincerely crushed lefty feeling like I have no way out now.

L-girl said...

But as I was reading through the CIC site I've just learned that Canada doesn't want me to emigrate because I have a disability.

Shit. I'm so sorry.

Not that that's your fault or anything

Uh, yeah. Obviously.

I guess any of my lefty-utopia illusions have just been brought down to Earth.

I know what you mean. Progressive Americans think of Canada a certain way, and then you find out it's just a country. Governed by people. And a lot of shitty things happen here. Way better than the US, for sure, and it's trying, but it's just a country. Not a paradise.

If you've been reading wmtc, you might know I write about disability issues (click on categories disability or my writing). This is a very bad thing to learn.

no I'm not a right-winger doing that "masking" thing

I never would have thought that. It's pretty obvious you are sincere.

I'm a sincerely crushed lefty feeling like I have no way out now.

I'm very sorry.

I hope you'll be certain of this before you decide not to apply. See if you have enough points (with or without your disability) to emigrate. Then you might want to email someone at the Council of Canadians with Disabilities and see if they have any additional info.

You might be 100% correct and I don't want to offer false hope. I'm just encouraging you to check with someone who might have more info.

Best of luck to you.

M. Yass said...

M said...
But as I was reading through the CIC site I've just learned that Canada doesn't want me to emigrate because I have a disability. Not that that's your fault or anything but I'm quite shocked at this policy (apparently deaf people have been descriminated against and turned away...deaf people?? that's so crazy to me).


No offence intended, but I find that very hard to believe. Where on CIC's site does it say that? By CIC, I assume you're referring to the official website of Citizenship and Immigration Canada. There are a lot of other immigration-to-Canada related websites, few of which I have found terribly helpful. They often contain a great deal of misinformation and sometimes, thanks to wingnut trolls, disinformation.

On this blog, Laura has a post about disabled folks winning a major victory at the Canadian Supreme Court on the right to immigrate. I'm too lazy to look it up right now as I'm just coming off of a 19-hour writing-and-caffeine jag.

L-girl said...

The commenter is correct about deafness as a bar to immigration. Here is the Canadian Association for the Deaf's position on the issue.

About disability in general, I believe it varies quite a bit, depending on if the person can support her/himself. But I'm not very clear on this.

After I read the comment, I looked at the CIC site and didn't find anything, but that doesn't mean it's not there. I do hope the commenter got the info from CIC itself and not from a discussion board, which, as you correctly say, are often full of misinformation.

M said...

L-girl and m.yass, thanks so much for your replies and the link to the Canadian disability site. I will try to contact someone at the CIC and see if I'm mistaken.

It doesn't flat out say on the CIC.gc.ca site "If you have any kind of disability, Canada doesn't want you" obviously, but many people with disabilities are unable to work or work full-time, etc. and if you go to the site you can see that other than the refugee status links you must have a certain working status to immigrate and I guess that is the main barrier, although L-girl did link to the site I had found about deaf people being rejected (because Canada has a "rejection for medical reasons" clause that I can't seem to find on the site right now). That's Canada's prerogative and I'm not saying the policy should be that anyone and everyone can come to Canada and live off the government (and that's a whole other can of worms and issues) but...well I'm just surprised (and naive) is all.

Here is an article I found about the issue that articulates better than I can: http://newsocialist.org/newsite/index.php?id=717

I imagine Canada has the rules set up the way it does to keep people who want to "game the system" out and I understand that, but it was pretty shocking to me that deaf people would be turned away and it does feel kind of like blanket descrimination. I don't think less of Canada or Canadians as a whole or anything but maybe this policy needs some work.

Thanks again for letting me ramble on your (very helpful and well-written) blog.

L-girl said...

It doesn't flat out say on the CIC.gc.ca site "If you have any kind of disability, Canada doesn't want you"

OK. If you didn't see that, then such a clause does not exist.

obviously, but many people with disabilities are unable to work or work full-time, etc.

But that's a separate issue. Immigration is geared towards people who can support themselves and how can pay into the health care system through their taxes. Many people with disabilities do support themselves, as I'm sure you know.

If a person does not have enough points, due to lack of education or work experience or language skills or whatever, they are probably not eligible to emigrate to Canada, but that's with or without a disability.

Canada has a "rejection for medical reasons" clause that I can't seem to find on the site right now

Yes and no. The Supreme Court of Canada ruled several years ago that medical issues cannot alone be a bar to immigration, including positive HIV status. So if there are medical issues there has to be something else, too.

Here is an article I found about the issue that articulates better than I can: http://newsocialist.org/newsite/index.php?id=717

Thank you, I'll take a look.

it was pretty shocking to me that deaf people would be turned away and it does feel kind of like blanket descrimination.

I agree that an exclusion of deaf people is discriminatory. It doesn't shock me, but I do agree with you.

Thanks again for letting me ramble on your (very helpful and well-written) blog.

You are welcome to comment here anytime. Thank you for reading wmtc.

Also, I just wanted to mention, you can't contact the CIC until you are in the immigration system (and even after that it's not easy!). But you can contact the Council of Canadians with Disabilities and see what they have to say about it.

I encourage you to take the self-assessment test and see if you have enough points to emigrate. If you're on the threshold, you might want to try anyway, if you can afford it.

M said...

Okay, thanks very much L-girl, I'll contact the CCD and see what they say. The self assessment test doesn't have options that are relevant to my situation so I can't get past the first page (it's very clear Canada wants people who can contribute economically and even if the US is paying out my disability it looks like I'm turned away...I'm not sure, I'll have to continue to research but even if it's not blatantly stated it can be descriminatory through sanitized language I think). Anyway, thanks so much for your help and interest and if the CCD replies with different information than what I've found I will update here.

L-girl said...

M, you're most welcome.

The self assessment test doesn't have options that are relevant to my situation so I can't get past the first page

I see. Then no, it's probably not going to work.

it's very clear Canada wants people who can contribute economically

That is definitely true.

but even if it's not blatantly stated it can be descriminatory through sanitized language I think

That's one way to look at it. Unfortunately the reality of the health care system here is another way to look at it. I don't see how immigration could be encouraged any other way, although it keeps many good people out of Canada.

Please do update me and feel free to email me at the address on this blog if there's anything I can do to help. Best of luck.