Hope high that court will overturn refugee ruling

It will likely be months before refugee advocates, including the Canadian Council of Churches, know whether they have prevailed at the Supreme Court. But for now, council general secretary Rev. Peter Noteboom is satisfied that the argument to strike down the Safe Third Country Agreement between the United States and Canada has been heard.

“I prayed that our lawyers speak truth, that their words drip with justice and that they are persuasive,” Noteboom told The Catholic Register the day after the Oct. 6 hearing before Canada’s highest court. “And I felt they did that.”

At issue is whether the U.S. system of immigration courts and the Immigration and Customs Enforcement (ICE) agency can be relied on to give asylum seekers south of the border a fair shake. Lawyers for the Canadian Council of Churches, Amnesty International and the Canadian Council for Refugees argued that whatever U.S. law says about the rights of would-be refugees, the reality is that asylum seekers are routinely incarcerated, denied representation at perfunctory hearings and often sent back to countries and situations where they face persecution and even death.

Lawyers engaged by the three organizations argued on behalf of eight refugee claimants from Ethiopia, El Salvador and Syria — two families and a lone individual.

“I thought it was compelling testimony on all sides. It was really a fascinating hearing all day,” Noteboom said.

The refugee lawyers were strongly challenged by a couple of the Supreme Court judges.

“I must say I find the Federal Court judge’s sweeping aside of the entire system of immigration appeals and the assessment of refugee claims (in the United States) to be extraordinary,” Justice Malcolm Rowe told the room full of lawyers.

In 2020 Federal Court Justice Ann Marie McDonald struck down the Safe Third Country Agreement as unconstitutional, finding that the agreement exposed those asylum seekers turned back at Canada’s official land border crossings to a grave danger of detention and refoulement — return to the country of origin. On the facts, McDonald found that asylum seekers in the United States are “detained without regard to their circumstances, moral blameworthiness or their situations.”

McDonald’s ruling was overturned by the Federal Appeals Court in 2021, leading directly to the Supreme Court hearing.

Canadian courts generally do not sit in judgment over other democratic countries’ legal systems, affording them a broad benefit of the doubt — a legal tradition known as “comity.” Lawyers for the government relied heavily on this tradition in arguing that the court should not interfere in Canada’s international relations.

“It’s an American legal system. When you have a democracy like the United States, you have to presume the foreign legal system is fair and just. And if you want to displace that, you have an uphill burden,” said the Crown’s lawyer Marianne Zoric.

Whatever the outcome, the legal battle to have all refugees on Canadian soil treated the same — asylum seekers who arrive by air, sea or at unofficial border crossings are not subject to the Safe Third Country Agreement — fits right in with a long tradition of churches advocating for refugee rights, said Noteboom.

“I think it’s a cyclical process, a spiral,” he said. “We advocate in the way that our faith drives us to advocate. The government responds — the government, our elected officials — makes adjustments and changes. And then we come at it again. It’s an ongoing process.”

While churches are better known for the welcome they provide to privately sponsored refugees, the entirely separate stream of asylum seekers on Canadian soil are no less a concern to the members of the Canadian Council of Churches, Noteboom said.

“There is also the political advocacy and refugee rights’ side, and I think the two go hand-in-hand,” he said.