Scott Newark's picture
Federal Court Ruling Needs to be Appealed
Posted on Jul 26, 2020


Last week, Madam Justice MacDonald of the Federal Court of Canada issued a ruling striking down the legislation which gave force to the Canada-US Safe Third Country Agreement that has been in force since 2004. (Canadian Council for Refugees et al. v Canada (Immigration, Refugees and Citizenship), [2020] FC 770

The basis for her ruling was that she did not approve of how the Americans immediately responded after persons were returned to the U.S. after trying to enter Canada in violation of the Agreement and Canadian law.

The ruling considered three cases one of which involved a young woman from Ethiopia (Mustefa) who had been in the U.S. for at least nine years and appears not to have even applied for asylum in the U.S. despite having family there. In accordance with the Agreement (and Canadian law enacted by Parliament) she was denied entry in April 2017 after reporting at a port of entry in Quebec and being found lying to Canada Border Services Agency (CBSA) officers about being exempt from the Agreement. She was handed over to U.S. officials and released from custody in the U.S. after less than 30 days, where she remains today.

The second case also involved a mother (ABC) and her children from El Salvador who were allegedly fleeing MS 13 gangsters. They arrived in the U.S. in November 2016 and were originally detained but then released on bond the next month and advised that the legal ‘removal’ proceedings would be launched. They went to live with family briefly but, by December 2016, they had moved into a refugee center in Buffalo. In January 2017 they were denied entry, in accordance with the Agreement and Canadian law, after reporting at the Fort Erie port of entry. They were not detained by U.S. authorities, and they returned to the Buffalo refugee shelter. Six months later, after getting ‘lawyered up’, they again sought entry at Fort Erie and were denied entry but were able to get a judge to issue a ‘stay’ of the removal order and were allowed entry and have remained here since that date.

In a bizarre twist, it turns out the judge that issued the stay of the lawful removal order was the same judge that three years later struck down the law which means, in effect, she upheld the validity of the order she originally issued herself.

The words ‘conflict of interest’ come to mind and, for once, it doesn’t refer to Justin Trudeau or Bill Morneau.

The third case involves a Syrian mother (Homsi) and her adult son and two children. The family left Syria in 2003 and moved to Saudi Arabia where the two youngest children were born. The family moved to the U.S. in 2015 after encountering violence in Syria and began seeking asylum in the spring of 2016. The mother and her children tried to enter Canada illegally between a designated port of entry (Roxham Rd) in February 2017, and they were denied entry and handed back to U.S. authorities who interviewed them and photographed them (requiring the removal of the mother’s hijab…which she complained about) before delivering them to the Lacolle port of entry the next day. Like the family from El Salvador, she too was ‘lawyered up’ (shortly after the PM’s infamous ‘welcome to Canada’ tweet) and was able to get a judicial ‘stay’ of the lawful removal order, and the family was allowed into Canada, first as ‘temporary residents’ and now as ‘permanent residents’.

The other participants in the case, not surprisingly, are several refugee-focused groups known as the ‘Three Eyes’ or the Illegal immigration Industry.

In essence, the applicant sought a ruling that the legislation enacted by Parliament which enabled the Safe Third Country Agreement is invalid because the government has failed to sufficiently monitor whether the U.S. is still a ‘safe’ Third Country. The Court rejected this argument. The applicants also sought a ruling that the actions of U.S. officials – who received the return of persons who were illegally trying to enter Canada – violated their Charter rights which they have thanks to a previous goofy SCC ruling that Charter protection to non-citizens once their toe touches Canadian soil, even if they are here illegally.  (Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 .

The Court found that the Charter rights of the applicants, and arguably others in the future, were violated by U.S. actions and were not saved by s. 1 of the Charter. The judge has given the government six months before the ruling comes into force.

This is clearly an inappropriate ruling based on unjustifiable facts. It is also, yet again, an example of inappropriate policy activism by an unelected unaccountable ‘juristocrat’.

For obvious reasons, this ruling needs to be appealed, yet the silence from the Government is deafening. Action needs to be taken…now.

Scott Newark LLB- July 26, 2020