Canada’s Federal Court extends deadline hanging over Safe Third Country pact with U.S.

The federal government has won a partial victory against a court order striking down a bilateral pact that stops asylum seekers from making a claim in this country via the United States.

On Monday, the Federal Court of Appeal ruled in favour of Ottawa and put aside the Jan. 22 deadline set by the lower court to void the Safe Third Country Agreement. The merits of the government appeal can be heard in a full hearing a month later in February.

In July, Federal Court Justice Ann Marie McDonald had ruled the Canada-U.S. accord unconstitutional because U.S. President Donald Trump’s administration routinely detained asylum seekers in poor conditions; the court essentially declared America unsafe for refugees.

In criticizing that Canada was complicit in the cruel and inhumane treatment of migrants, the court gave Ottawa six months to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact became invalid.

Last week in a motion hearing, the government argued that Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of the bilateral pact, causing “irreparable harm” to the Canadian public, especially amid a global pandemic.

“In practical terms, all that is in serious issue here is as little as a one-month addition to the suspension given by the Federal Court,” Justice David Stratas wrote in a 19-page decision on the government motion to suspend the deadline. “It can be expected that the panel will do its best to expedite the release of its decision, especially if it intends to dismiss the appeal, thereby minimizing the duration of the stay.

“Flexibility should be accorded, where possible, due to the practical exigencies caused by the extraordinary COVID-19 pandemic we are all experiencing,” said the appeal court. “The pandemic is affecting the efficiency of the legislative process. The Federal Court’s estimate of six months for any necessary legislative action now appears to be unrealistic.”

Advocates for refugees said they were disappointed with the appeal court decision.

“We know that a significant number of refugees who Canada turns back into the U.S. are immediately jailed, under horrific conditions,” said Maureen Silcoff, president of the Canadian Association of Refugee Lawyers.

“Canada prides itself as being a leader in refugee protection. This should entail sending a clear message to countries that fail to respect refugees’ human rights. Instead, we are legitimizing the unacceptable treatment of refugees under President Trump. How can we turn a blind eye to human suffering?”

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