Final Reflections on the US-Canada Safe Third Country Hearings

After an inspiring, challenging and eventful week at the Federal Court in Toronto, it is worth taking a moment for some final reflections on the court challenge to the Safe Third Country Agreement (STCA) which took place from November 4-8, 2019. 

The applicants in this case – Amnesty International, the Canadian Council for Refugees, the Canadian Council of Churches, as well as other individual litigants – are represented by nine exceptional lawyers. Throughout the entire process, these advocates have approached their work with eloquence, tact and remarkable empathy. For over two years, they put in countless hours of work: collecting testimonies, questioning and cross-examining experts, and refining their legal arguments. To get a sense of the extent of their commitment, five babies were born within the legal team during the build-up to the STCA challenge! Their dedication to this work is remarkable, and it is worth repeating their names and thanking them for all the time and energy they have contributed to this court challenge: Prasanna Balasundaram, Joshua Blum, Michael Bossin, Andrew Brouwer, Heather Neufeld, Leigh Salsberg, Erin Simpson, Kate Webster and Jared Will.

The unenviable task of deciding what will happen with the STCA rests with Federal Court Justice Ann Marie McDonald, who will have to sift through thousands of pages of arguments, expertise, and evidence to make her decision. And although it is eagerly anticipated by many, it is difficult to predict when a decision will be released.

Beyond the legal arguments, what will remain engraved in our memories from this week are the personal stories shared throughout the hearing. Stories like those of the Syrian family who were separated once detained in the U.S., the parents forbidden from consoling their children (ages 2 and 3) when they woke up frightened and confused in the detention center. Or when counsel for the applicants, Prasanna Balasundaram, drew on his own experience from years before when he and his family passed through the U.S. to Canada at the same port of entry as one of the individual litigants in this case. He recalled, “in that moment, what you seek to traverse is a border between hope and despair, and as you straddle that line, everything is an act of overcoming fear.” In sharing his own account, he urged the court to exercise empathy as it considers the testimonies of those who have been impacted by the STCA.

These stories not only form the backbone of this case, but they also reflect a reality in North America that can no longer be ignored.

So where to go from here?

Despite the significance of this court challenge, the fight against policies like the STCA must continue to radiate outside of courtrooms. As it stands, we currently have a minority federal government that could potentially draw on support from three political parties that stated their opposition to the STCA during the election campaign. The current circumstances seem ripe for such a suspension. And yet, given how zealously and vigorously the Canadian government’s lawyers defended the STCA in court last week, we cannot take for granted any particular outcome.

And so, we call on Amnesty supporters, advocates, activists and citizens to use the platforms available to amplify the voices and stories of refugee claimants unjustly affected by the STCA. By engaging and lobbying our elected representatives and those in positions of power to encourage the Government of Canada to suspend the STCA, we show that we refuse to recognize the U.S. as a safe place for refugees and refuse to be complicit in the harm faced by refugee-claimants impacted by the STCA.