A federal judge has struck down a key agreement on refugees between Canada and the United States, but gave Ottawa six months of breathing room to respond to the landmark decision.
In a keenly awaited ruling, Federal Court Justice Ann Marie McDonald said Wednesday that elements of the law underpinning the Safe Third Country Agreement violate the constitutional guarantee of life, liberty and security.
Under the agreement, which took effect in 2004, Canada and the U.S. recognize each other as safe places to seek protection.
It means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they must pursue their claims in the U.S., the country where they first arrived.
Canadian refugee advocates have vigorously fought the deal, arguing the U.S. is not always a safe country for people fleeing persecution.
The judge's declaration of invalidity is suspended for six months, leaving the law in place until mid-January and giving the Trudeau government time to respond to the court ruling.
Mary-Liz Power, a spokeswoman for Public Safety Minister Bill Blair, said the government was reviewing the ruling.
Several refugee claimants took the case to court along with the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, who participated in the proceedings as public interest parties.
In each case the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land entry port from the U.S. and sought refugee protection.
They argued in court that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention and other rights violations.
In her decision, McDonald concluded that the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.
Detention and the consequences flowing from it are "inconsistent with the spirit and objective" of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter, she wrote.
"The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty."
The public interest parties who took part in the case welcomed the ruling, calling on the federal government to stop sending people back to the U.S. under the agreement, and to not appeal the court decision.
"While the Federal Court has provided the government with six months leeway, it is imperative that Canada immediately end the return of claimants to the U.S.," said Alex Neve, secretary general of Amnesty International Canada.
"The Safe Third Country Agreement has been the source of grave human rights violations for many years, unequivocally confirmed in this ruling. That cannot be allowed to continue one more day."
The Federal Court "could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them," said Dorota Blumczynska, president of the council for refugees.
"Their experiences show us — and convinced the court — that the U.S. cannot be considered a safe country for refugees."
