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Supreme Court of Canada reserves decision on constitutionality of refugee pact

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OTTAWA — The Supreme Court of Canada will take time to weigh arguments about the constitutionality of a refugee agreement between Ottawa and Washington after hearing a challenge from claimants and human-rights advocates.

Opponents of the Safe Third Country Agreement argue it “contracts out” Canada’s international obligations to refugee claimants to the United States, without proper followup to ensure Washington is doing the job.

They want the top court to declare the legislation underpinning the pact in violation of the Section 7 Charter of Rights and Freedoms guarantees of life, liberty and security of the person.

The federal government has consistently defended the constitutionality of the agreement, under which Canada and the United States recognize each other as havens to seek protection.

Supreme Court judges peppered both sides with questions Thursday about their legal arguments before reserving a decision in the case until a later date.

The binational agreement allows Canada to turn back prospective refugees who show up 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.

“We are not dealing with people who are fleeing from their home countries,” federal lawyer Marianne Zoric told the Supreme Court hearing. “They are people that are coming to Canada from a safe third country.”

In a written submission to the court, the government argues that returnees have access to fair asylum and detention processes south of the border. “It is not unreasonable to remove claimants to the United States so that they can claim protection in that country.”

Canadian refugee advocates have long battled the asylum agreement, contending the U.S. is not always a safe country for people fleeing persecution.

Several refugee claimants took the case to Federal Court along with the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, which participated in the proceedings as public interest parties.

In each case, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at an official Canadian entry point 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 2020 decision, Federal Court Justice Ann Marie McDonald concluded 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.”

McDonald also found evidence of barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the U.S., heightening the risk of people being returned to dangers in their home country.

However, the Federal Court of Appeal overturned the decision last year.

“The alleged constitutional defect in this case stems from how administrators and officials are operating the legislative scheme, not the legislative scheme itself,” the Appeal Court said.

“But because the claimants chose not to attack any administrative conduct, we have neither the ability nor the evidence before us to assess it.”

The Court of Appeal also found the legislative regime consistent with the Charter unless the treatment experienced by those sent back to the U.S. could be shown to “shock the conscience.”

In their written submission to the Supreme Court, the claimants and advocates say the Appeal Court “declined to engage with the substantive merits of the case” and adopted a “highly restrictive approach to Charter review.”

They argue the U.S. immigration detention system has been “widely condemned for its serious violations of international minimum standards” for holding asylum seekers.

“This legislative scheme effectively contracts out Canada’s international obligations to refugee claimants based on the premise that the U.S. will fulfil those obligations for us,” the submission says.

While Canada is required by law to ensure this premise remains valid through ongoing monitoring of U.S. asylum policies and practices, “it has failed to do so,” they argue.

On the contrary, the government says, at the time of the Federal Court hearing, Canadian review of the binational agreement was “efficient, effective and thorough,” and the information gathered did not reveal significant problems.

Justice Malcolm Rowe suggested to Andrew Brouwer, a lawyer for the public interest parties, that they were arguing any failure within the U.S. immigration system means Canada can never turn anyone back at the border because it will be contrary to the Charter.

“Isn’t that what you’re saying to us?”

Brouwer indicated there is evidence that Canada sends refugees into circumstances where they face detention and the risk of persecution.

“What we’re saying is that if Canada wants to rely on the United States as a partner for refugee protection, then at a minimum, Canada needs to be able to rely on the U.S. upholding its obligations to ensure effective protection to those that we hand over to the U.S.”

This report by The Canadian Press was first published Oct. 6, 2022.

 

Jim Bronskill, The Canadian Press

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‘Disgraceful:’ N.S. Tory leader slams school’s request that military remove uniform

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November 8, 2024

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HALIFAX – Nova Scotia Premier Tim Houston says it’s “disgraceful and demeaning” that a Halifax-area school would request that service members not wear military uniforms to its Remembrance Day ceremony.

Houston’s comments were part of a chorus of criticism levelled at the school — Sackville Heights Elementary — whose administration decided to back away from the plan after the outcry.

A November newsletter from the school in Middle Sackville, N.S., invited Armed Forces members to attend its ceremony but asked that all attendees arrive in civilian attire to “maintain a welcoming environment for all.”

Houston, who is currently running for re-election, accused the school’s leaders of “disgracing themselves while demeaning the people who protect our country” in a post on the social media platform X Thursday night.

“If the people behind this decision had a shred of the courage that our veterans have, this cowardly and insulting idea would have been rejected immediately,” Houston’s post read. There were also several calls for resignations within the school’s administration attached to Houston’s post.

In an email to families Thursday night, the school’s principal, Rachael Webster, apologized and welcomed military family members to attend “in the attire that makes them most comfortable.”

“I recognize this request has caused harm and I am deeply sorry,” Webster’s email read, adding later that the school has the “utmost respect for what the uniform represents.”

Webster said the initial request was out of concern for some students who come from countries experiencing conflict and who she said expressed discomfort with images of war, including military uniforms.

Her email said any students who have concerns about seeing Armed Forces members in uniform can be accommodated in a way that makes them feel safe, but she provided no further details in the message.

Webster did not immediately respond to a request for comment.

At a news conference Friday, Houston said he’s glad the initial request was reversed but said he is still concerned.

“I can’t actually fathom how a decision like that was made,” Houston told reporters Friday, adding that he grew up moving between military bases around the country while his father was in the Armed Forces.

“My story of growing up in a military family is not unique in our province. The tradition of service is something so many of us share,” he said.

“Saying ‘lest we forget’ is a solemn promise to the fallen. It’s our commitment to those that continue to serve and our commitment that we will pass on our respects to the next generation.”

Liberal Leader Zach Churchill also said he’s happy with the school’s decision to allow uniformed Armed Forces members to attend the ceremony, but he said he didn’t think it was fair to question the intentions of those behind the original decision.

“We need to have them (uniforms) on display at Remembrance Day,” he said. “Not only are we celebrating (veterans) … we’re also commemorating our dead who gave the greatest sacrifice for our country and for the freedoms we have.”

NDP Leader Claudia Chender said that while Remembrance Day is an important occasion to honour veterans and current service members’ sacrifices, she said she hopes Houston wasn’t taking advantage of the decision to “play politics with this solemn occasion for his own political gain.”

“I hope Tim Houston reached out to the principal of the school before making a public statement,” she said in a statement.

This report by The Canadian Press was first published Nov. 8, 2024.

The Canadian Press. All rights reserved.



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Sides in B.C. port dispute to meet in bid to end lockout after talk with minister

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November 8, 2024

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VANCOUVER – Employers and the union representing supervisors embroiled in a labour dispute that triggered a lockout at British Columbia’s ports will attempt to reach a deal when talks restart this weekend.

A spokesman from the office of federal Labour Minister Steven MacKinnon has confirmed the minister spoke with leaders at both the BC Maritime Employers Association and International Longshore and Warehouse Union Local 514, but did not invoke any section of the Canadian Labour Code that would force them back to talks.

A statement from the ministry says MacKinnon instead “asked them to return to the negotiation table,” and talks are now scheduled to start on Saturday with the help of federal mediators.

A meeting notice obtained by The Canadian Press shows talks beginning in Vancouver at 5 p.m. and extendable into Sunday and Monday, if necessary.

The lockout at B.C. ports by employers began on Monday after what their association describes as “strike activity” from the union. The result was a paralysis of container cargo traffic at terminals across Canada’s west coast.

In the meantime, the union says it has filed a complaint against the employers for allegedly bargaining in bad faith, a charge that employers call a “meritless claim.”

The two sides have been without a deal since March 2023, and the employers say its final offer presented last week in the last round of talks remains on the table.

The proposed agreement includes a 19.2 per cent wage increase over a four-year term along with an average lump sum payment of $21,000 per qualified worker.

The union has said one of its key concerns is the advent of port automation in cargo operations, and workers want assurances on staffing levels regardless of what technology is being used at the port.

The disruption is happening while two container terminals are shut down in Montreal in a separate labour dispute.

It leaves container cargo traffic disrupted at Canada’s two biggest ports, Vancouver and Montreal, both operating as major Canadian trade gateways on the Pacific and Atlantic oceans.

This is one of several work disruptions at the Port of Vancouver, where a 13-day strike stopped cargo last year, while labour strife in the rail and grain-handling sectors led to further disruptions earlier this year.

This report by The Canadian Press was first published Nov. 8, 2024.

The Canadian Press. All rights reserved.



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Results expected in B.C. election recounts, confirming if NDP keeps majority

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November 8, 2024

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VANCOUVER – Judicial recounts in British Columbia’s provincial election should wrap up today, confirming whether Premier David Eby’s New Democrats hang onto their one-seat majority almost three weeks after the vote.

Most attention will be on the closest race of Surrey-Guildford, where the NDP were ahead by a mere 27 votes, a margin narrow enough to trigger a hand recount of more than 19,000 ballots that’s being overseen by a B.C. Supreme Court judge.

Elections BC spokesman Andrew Watson says the recounts are on track to conclude today, but certification won’t happen until next week following an appeal period.

While recounts aren’t uncommon in B.C. elections, result changes because of them are rare, with only one race overturned in the province in at least the past 20 years.

That was when Independent Vicki Huntington went from trailing by two votes in Delta South to winning by 32 in a 2009 judicial recount.

Recounts can be requested after the initial count in an election for a variety of reasons, while judicial recounts are usually triggered after the so-called “final count” when the margin is less than 1/500th of the number of votes cast.

There have already been two full hand recounts this election, in Surrey City Centre and Juan de Fuca-Malahat, and both only resulted in a few votes changing sides.

A partial recount of votes that went through one tabulator in Kelowna Centre saw the margin change by four votes, while a full judicial recount is currently underway in the same riding, narrowly won by the B.C. Conservatives.

The number of votes changing hands in recounts has generally shrunk in B.C. in recent years.

Judicial recounts in West Vancouver-Sea to Sky in 2020 and Coquitlam-Maillardville in 2013 saw margins change by 19 and six votes respectively.

In 2005, there were a record eight recounts after the initial tally, changing margins by an average of 62 votes, while one judicial recount changed the margin in Vancouver-Burrard by seven.

The Election Act says the deadline to appeal results after judicial recounts must be filed with the court within two days after they are declared, but Watson says that due to Remembrance Day on Monday, that period ends at 4 p.m. Tuesday.

When an appeal is filed, it must be heard no later than 10 days after the registrar receives the notice of appeal.

A partial recount is also taking place in Prince George-Mackenzie to tally votes from an uncounted ballot box that contained about 861 votes.

The Prince George recount won’t change the outcome because the B.C. Conservative candidate there won by more than 5,000 votes.

If neither Surrey-Guildford nor Kelowna Centre change hands, the NDP will have 47 seats and the Conservatives 44, while the Greens have two seats in the 93-riding legislature.

This report by The Canadian Press was first published Nov. 8, 2024.

The Canadian Press. All rights reserved.



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