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Protests in Canada as Federal Court Hears Key Immigration Case

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TORONTO, CANADA – At a federal courthouse in Toronto, the long-awaited trial of Canada’s asylum agreement with the U.S. began on Monday. The so-called “safe third country” agreement, signed in 2002, forces asylum seekers looking to file in Canada back to the United States if they are coming over the U.S. southern border. Plaintiffs argue that the U.S. is no longer a safe third country for asylum seekers.

While there are a few exceptions, the safe third country pact has meant that thousands of asylum seekers have traveled to Canada irregularly—between ports of entry—rather than face being handed directly from the Canadian authorities to U.S. Customs and Border Protection agents.

When the court adjourned for lunch Monday, dozens of protesters gathered outside to call for a suspension of the agreement. Among the protesters were asylum seekers, asylum scholars, activists, and private sponsors of refugees—people who help newcomers resettle in Canada. Several of the speakers also included leaders from the organizations challenging the agreement, including General Secretary of the Canadian Council of Churches Peter Noteboom, and Secretary General of Amnesty International Canada Alex Neve.

When Noteboom spoke, he invoked the traditional meet-and-greet of Sunday-morning church services. There is “probably a refugee in your life who has inspired you to be here,” he said. He told the protesters to turn to their neighbors and tell them why they were at the rally. “Jesus was a refugee who was born into a refugee family,” Noteboom said. “He makes it possible for us to be here, too. Everyone in Canada should have access to the [Canadian] Charter of Rights and Freedoms.”

Neve said that the trial and the continued existence of the agreement amounts to “a moment of reckoning for us as a nation.” If Canadians don’t stand up against this agreement, he said, they “give a nod of complicity to Donald Trump” and Trump’s “assault” on migrants.

Neve, who said he had just returned from his second trip to the U.S.-Mexico border, told me in an interview after the rally that the conditions along the southern border are three times worse. To the crowd he said that to continue the agreement is to continue “Canada’s despicable, deplorable assessment that the U.S. is safe [for refugees and asylum seekers].”

In an interview after the rally, former asylum seeker and refugee advocate Loly Rico said simply, “I am here … because I came as a refugee and the doors were open.” Rico, originally from El Salvador, said she has been in Canada for 29 years and that she has been calling for a suspension of the agreement since it was first signed.

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Another speaker, President of the Canadian Association of Refugee Lawyers Maureen Silcoff, noted that the agreement has a disproportionate effect on women, because the U.S. does not view domestic violence and gender-based violence as grounds for asylum. When asylum seekers fleeing this kind of violence travel through the U.S. to reach Canada, they are rejected under the safe third country agreement. She added that the U.S. makes it almost impossible to win asylum on these grounds because of its narrow definition. “This sends the message that women are less worthy of protection,” said Silcoff to the crowd. Canada’s charter, Silcoff said, requires “we ensure fundamental justice” and to allow the agreement to remain in place would violate Section 2 of the charter.

Rico, who works mostly with women and children at the FCJ Refugee Centre where she is co-director, told me that many of the asylum seekers she works with have to come through the U.S. because there aren’t as many direct flights to Canada. Then, in order to seek asylum more easily, her clients cross the border irregularly, a much more dangerous way to travel. Common entry points are Emerson, Manitoba, a small agricultural town that hits brutal subzero temperatures for much of the year, and Roxham Road in Quebec.

More than 40,000 asylum seekers have crossed this way in the last two years. Prior to Trump taking office, so few crossed this way the government did not keep records. While this number is small compared to the number of asylum seekers Canada has accepted in the past, it has helped to draw attention to the agreement. Conservatives, and especially the more right-wing People’s Party, attempted to use irregular border crossing as a “wedge issue” in the elections by calling Liberals the party of open borders. Liberals won and the People’s Party garnered less than 1 percent of the vote, but the issue continues to play out in provincial politics, particularly in Quebec, where most irregular asylum seekers have crossed.

Protesters also expressed disappointment in Canada’s lack of activism and condemnation of the Trump administration’s immigration policies.

“Shame on Canada!” said Sharry Aiken, a professor of law at Queen’s University. Her condemnation was met with chants from the crowd. She called for Canada to suspend the agreement, but murmurs from the crowd around me called for the agreement to be canceled altogether. The former Canada can do unilaterally, but the latter requires the U.S. to consent—something most think is unlikely, given that the agreement allows asylum seekers to pursue asylum elsewhere.

Neve told me in an interview after the rally that “the era of Donald Trump” has made Canadians more aware of the agreement and its impact on asylum seekers. “Finally we have thousands of individuals who very understandably knew that the disgraceful fiction of that agreement, that the United States is safe for refugees—if it ever was true—was not long true and it was getting worse every single day,” he said.

The hearings are scheduled for the full week and began Monday morning. The Canadian Council for Refugees, the leader of the coalition litigating this week’s case, first challenged the agreement in 2007. While the court ruled then that the U.S. was not safe for refugees, its decision was overturned on appeal due to a technicality, with the court ruling that public-interest groups did not have any standing to sue. This time, advocates tell me, the case is designed to ensure that doesn’t happen again. The plaintiffs include nine asylum seekers who attempted to cross into Canada through a port of entry and were denied under the agreement.

“This is a time when Canada’s voice should be loud,” said Neve. But, he said, there haven’t even been “whispers” of concern from Canada’s government as Trump has ratcheted up his anti-immigrant policies. “Show up or you face your conscience,” Neve said.

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