“Hey, hey! Ho, ho! Safe Third has got to go! Hey, hey! Ho, ho! Safe Third has got to go!”

Posted on November 7, 2019May 7, 2020 by Tal Schreier

by Karen Chen, Shelby Rooney and Anju Xing

Dozens gathered in front of the Federal Court in Toronto this Monday, Nov. 4 to chant along in support of a legal challenge against the United States’ designation as a “safe country” under the Safe Third Country Agreement (STCA). A challenge years in the making, Asper Centre students in the Immigration and Refugee Law working group worked to support the applicants’ legal team by providing research and advocating in the media for the Agreement to be set aside.

The STCA is an agreement between the United States and Canada that requires refugee claimants request refugee protection in the first safe country they arrive in. The power to designate safe third countries resides in section 102 of the Immigration and Refugee Protection Act (IRPA). Factors to be considered when determining a country’s designation include its compliance with the United Nations Refugee Convention and the United Nations Convention Against Torture, as well as its human rights record.

The Canadian government is required to “ensure the continuing review” of the above factors for each “safe” country. This monitoring framework enables Immigration, Refugees and Citizenship Canada to identify changes in policies and practices that would considerably weaken the level of human rights and refugee protection that the country designated as safe provides.

In December 2004, Canada declared the United States a “safe third country”. It is the only country to receive such a designation under the Agreement. Practically, the agreement precludes asylum seekers from seeking refugee protection in Canada if they have come from or previously landed in the United States.

Given political and policy shifts in the United States since the election of President Donald Trump and even before 2016, many refugee advocates argue it is no longer a safe third country. For example, the United States currently limits asylum for women fleeing from domestic violence to only very exceptional cases. It also prosecutes asylum-seekers who enter the country from points other than official ports of entry, contrary to international law.[1] Moreover, evidence shows that many people – including children – are being arbitrarily detained in immigration detention centres, in poor conditions and with little or no access to legal counsel.[2] This deprives asylum seekers from the ability to have a fair hearing. Thus, the Agreement should no longer preclude asylum seekers who come from the United States from applying for refugee protection in Canada.

In 2007, a previous challenge to the STCA by three organizations– the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches –was upheld at the Federal Court. However, this decision was overturned at the Federal Court of Appeal in 2008 on the grounds that in designating the US a “safe third country”, the Immigration and Refugee Protection Act only required the Canadian government to consider the factors listed in the Act; it did not require actual compliance with the UN Refugee Convention.

The current challenge to the STCA is being brought by three individual litigants and the three public interest organizations that brought the original challenge. They argue that the United States’ “safe third country” designation violates refugee rights under international law as well as section 15 and 7 rights guaranteed under the Canadian Charter of Rights and Freedoms. They also argue that the provision allowing the exemption ought to be struck down as ultra vires under administrative law.

Students from the Asper Centre’s Immigration and Refugee Law Working Group in 2018-2019 had the fantastic opportunity to hear from Erin Simpson, one of nine lawyers working on the legal challenge to the STCA. Simpson spoke to the students about the current situation in the United States, the status of the case, and what further information would be needed. This meeting prepared the students to research and prepare reports that were used for cross-examination in the case.

The work by students last year built on the research work of students in the 2017-2018 Asper Centre Immigration and Refugee Law Working Group which also helped Simpson with research in the development of certain arguments now being heard.

Throughout, students at the Faculty of Law’s Downtown Legal Services clinic in the Refugee and Immigration Division worked under the guidance of lawyer Prasanna Balasundaram to support the challenge by preparing memoranda on section 7 of the Charter, preparing for cross-examination, listening in on strategy meetings with the litigation team, keeping the files organized, and perhaps most importantly, supporting the individual litigant “ABC” and her family with issues arising in their day-to-day lives.

Challenges like this one depend on so many people coming together to fight for the rights-respecting, international law and Charter-compliant Canada we want. To have these arguments heard in Federal Court this week, it required the courage of the individual applicants whose lives were affected by the STCA, the hard work and dedication of the legal team and organizations advocating for the applicants, as well as the research and support of law students in the Asper Centre working groups and Downtown Legal Services clinic. As students, we were honoured to have contributed what we could and to have learned so much from being involved in this incredibly important work – work that many of us hope to continue to do and support for the rest of our careers.

[1] Canadian Council for Refugees, “Why we are challenging the USA as a “safe third country” in the Federal Court of Canada” (December 2017) at 1, online (pdf): Canadian Council for Refugees <ccrweb.ca/sites/ccrweb.ca/files/stca-contesting-overview.pdf>.

[2] Ibid

Karen Chen is a 3L JD Candidate at the Faculty of Law. She was a leader of the Asper Centre Refugee & Immigration Law working group in 2018-2019, and also worked in the Downtown Legal Services clinic.

Shelby Rooney is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

Anju Xing is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

Asper/IHRP Summer 2020 Fellowship Information Session

For current JD students @UTLaw >> please attend this information session to learn more about the Asper Centre and the International Human Rights Program’s Summer Fellowship opportunities.

Date: Wednesday Oct 30, 2019

Venue: J140 Jackman Law Building

Time: 12:30pm

More details about the Asper Centre Fellowship program may be found here.

Report from our 2019 Summer Fellow at LEAF

Posted on July 23, 2019May 7, 2020 by Tal Schreier

by Paniz Khosroshahy

This summer I have been working at Women’s Legal Education and Action Fund (LEAF) as an Asper Centre Summer Fellow. LEAF works to advance women’s substantive equality rights through litigation, law reform, and public education, and I feel fortunate to have been able to assist the organization with its projects for the past two months.

My main responsibility is to work on LEAF’s project on image-based sexual violence, which can include surreptitious recordings, “deep fakes,” “revenge porn,” and other forms of non-consensual creation and distribution of intimate and sexualized images. This project follows LEAF’s intervention in R v Jarvis, a case heard at the Supreme Court of Canada (SCC) earlier this year that concerned a high school teacher secretly recording his female students’ cleavage using a camera in his pen. Thankfully, after some unfortunate precedents in Ontario and other provinces, the SCC clarified that the voyeurism provisions of the Criminal Code prohibited Mr. Jarvis’s conduct, and that women did not leave their expectations of privacy at the door when they left their homes.

The aim of this project is to consolidate Canadian and international responses to image-based sexual violence and identify best practices for its regulation. This resource would then be used for LEAF’s future interventions as well as inform its policy proposals and recommendations to governments.

I am very excited to be working on this project as it concerns a new and developing area of law. In that sense, LEAF is not trying to retroactively fix rape myths and stereotypes embedded in the law but actually set the agenda by ensuring that the legislatures, courts, and administrative bodies shape laws in line with women’s equality. While nowadays it is less acceptable to disparage survivors for having “asked for it,” such attitudes are still common when it comes to internet-based hate and abuse. For example, the judge in one of the cases that I researched is of the view that, to avoid receiving death and rape threats on Twitter, women should just stay off social media. However, just as drinking alcohol is not a permission for sexual advances, sending intimate images to one’s partner is also not a permission for those images to be posted on pornography websites. There is no clear line between our lives online and offline, and the courts need to adjust to that reality as soon as possible.

Aside from the image-based sexual violence project, I have also contributed to research in support of a potential intervention in R v Fraser. This case is on appeal to the SCC and concerns RCMP’s discriminatory pension policy towards part time employees, who are almost all women with childcare responsibilities. This is a very important case as it touches on how the pension system rewards full time, long-term, high-paying, permanent employment and effectively disregards and devalues part-time work, housework, and caring labour, which characterizes work overwhelmingly done by women. I hope to be involved with the case later into the school year.

I have also supported the LEAF staff in completing several other reports and submissions. I started my fellowship by contributing to LEAF’s chapter for a report created by the Centre for Policy Alternatives about Canada’s implementation of the Beijing Platform for Action. The Beijing Platform concerns gender equality and was adopted by Canada and other countries at the Fourth World Conference on Women in 1995. The signatories will convene in 2020 for the UN’s summit on Commission on the Status of Women in 2020 to evaluate their progress.

Another highlight of my summer thus far has been working on a project about alternative methods of sexual assault adjudication. I have written and contributed to chapters on campus sexual assault mechanisms, criminal injuries compensation programs, specialized domestic violence and sexual violence courts, and restorative and transformative justice approaches to sexual assault. I also assisted with drafting LEAF’s submission to the Law Society of Ontario on access to justice.

Last but not least, one of the most exciting aspects of my fellowship has been to connect with feminist legal scholars and practitioners from all over the country. It was reading the writing and work of these individuals that motivated me to go to law school in the first place, and it has been truly an honour to be able to meet and work with them during my time at LEAF. Overall, I have had an extremely fulfilling experience at LEAF, and I recommend this fellowship to students interested in using their legal knowledge and skills for social justice.

Paniz is a 2L JD Candidate at the Faculty of Law, and was awarded an Asper Centre fellowship to work at LEAF this summer.

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

Posted on May 3, 2019May 7, 2020 by Tal Schreier

by Delia Luca and Jacob Webster

The final panel of the Asper Centre Immigration Detention Symposium held on March 15, 2019 focused on the Immigration Detention Toolkit (Toolkit) recently launched by the Canadian Association of Refugee Laywers (CARL) and the Asper Centre Clinic’s Compendium of jurisprudence related to the Immigration and Refugee Board’s (IRB) External Audit, soon to be available. In conjunction, the panellists advanced strategies for addressing the ongoing challenges in Canada’s immigration detention system and illuminated the discrepancies between the expectations articulated by the courts and the practice of the IRB’s Immigration Division (ID). The panelists were Jamie Chai Yun Liew, Associate Professor at the University of Ottawa and co-leader of CARL working group on Immigration Detention, Aris Daghighian, an Associate at Green and Spiegel LLP and member of CARL’s Working Group on Immigration Detention, Devon Johnson, a JD Candidate at UofT Law and Asper Centre Clinic Student and Jim Molos a JD Candidate at UofT Law and Asper Centre Clinic Student. The panel was moderated by Enbal Singer a 3L at UofT Law and co-leader of the Asper Centre’s student working group on Immigration and Refugee Law.

The Immigration Detention Toolkit

The Immigration Detention Toolkit was devised by CARL in order to provide recommendations on the steps counsel can take to ensure the fairest process possible outcomes for their clients in immigration detention. The panelists modestly acknowledged that the Toolkit is a “living document”, an evolving document, that ought to be updated to reflect criticisms and recommendations. The Toolkit is the product of laudable advocacy across the country, in response to the Immigration and Refugee Board’s (IRB) External Audit. The panelists cautioned that the Toolkit should not be used in isolation, as it is meant to be employed by counsel in conjunction with the Chairperson’s Guidelines.

While touched on throughout the panel, the need to ensure fair representation for clients in the face of relatively unprincipled judgments strikes us as meriting a more elaborate discussion. How should counsel approach discrepancies and a lack of transparency with respect to the immigration detention system? The Toolkit seeks to aid counsel in discerning what they should demand of the ID. For instance, counsel must ask for sufficient disclosure in order to hold the Canada Border Service Agency’s (CBSA) officials accountable, CBSA should provide reasonable notice of the evidence or information that will be relied upon at the detention review, including any evidence that may exculpate the detainee. Knowing the right questions and making appropriate demands on behalf of clients is especially relevant in a legal forum where government officials and the ID have seemingly broad discretion.

The panel also touched upon the question of how to properly articulate detainee’s mental illness, addiction and other vulnerabilities. As legal practitioners working with vulnerable clients, one must acknowledge and represent their client’s circumstances in a manner that does not disaffirm their agency and active role throughout the process. Despite societal efforts at creating a safe environment where said vulnerabilities may be discussed openly, detainees’ suffering from various conditions continue to be stigmatized. In such cases, counsel must assess their client’s situation, identify the need to appoint a Designated Representation (DR) and inform the ID accordingly.

The Toolkit advances recommendations of how to relate to the vulnerability of detainees and encourage the courts to consider their vulnerability in a substantive, rather than merely procedural manner. Counsel must demonstrate that their client’s vulnerability should not be taken as a flight risk or risk to the public. Furthermore, counsel must highlight that the detainee’s mental health or addiction is not voluntary and may inhibit one’s capacity. In doing so, counsel must not severely victimize the client in a manner that strips the client of their perceived ability to improve their condition. This issue invokes the rising demands upon immigration lawyers to think creatively, as evidenced by the advent of using habeas corpus under section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) on behalf of clients, to grant them relief from arbitrary state detention. All in all, in the face of broad discretion, counsel must challenge Canada Border Services Agency (CBSA) submissions and force adequate disclosure. As per the words of one of the panelists, counsel has the duty to “put CBSA’s feet to the fire” in hopes of facilitating a fair and just process.

A Compendium of Federal Court Jurisprudence

As clinic students at the Asper Centre last term, Jim Molos and Devon Johnson conducted a survey of relevant Federal Court case law and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings. Their presentation emphasized the minimum standards for lawful immigration detention and their interpretation under section 7 of the Charter in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. Molos stressed the importance of effective advocacy. Although the constitutionality of the Immigration and Refugee Protection Act (IRPA) has been affirmed by courts, particular detentions may still be unconstitutional. With relation to disclosure, it was stressed that section 7 of the Charter protects the right against having a case brought on undisclosed evidence. Thus, counsel should ensure that the Minister’s case is challenged effectively.

The latter half of Molos and Johnson’s presentation focused on alternatives to detention under section 58(3) of the IRPA. The panellists emphasized that all conditions imposed on release should be viewed as an imposition of liberty and thus must be subject to ongoing review in a way that ensures that the impositions do not deprive liberty disproportionate to risk.

In the question and answer period that followed the panel, an audience member questioned whether the CARL Toolkit is written in a manner accessible to unrepresented detainees or published in multiple languages. Liew and Daghighian acknowledged that this was an important suggestion and that while the Toolkit was written in an accessible manner, it was probably not accessible enough for a self-represented litigant. This speaks to the evolving nature of the document.

The CARL Toolkit is available here and the Asper Centre Federal Court Case law Compendium is forthcoming. The presentation used by Liew and Daghighian during the panel is available here and the presentation used by Molos and Johnson is available here.

Delia Luca and Jacob Webster are both 1L JD Candidates at the Faculty of Law and members of the Asper Centre’s Immigration & Refugee Law student working group.

Asper Centre students call for Canada to suspend STCA on Refugee Rights Day

Posted on April 5, 2019May 7, 2020 by Tal Schreier

via @UTLaw: https://www.law.utoronto.ca/news/students-call-on-canada

Thursday, April 4, 2019

Image of Canadian border sign

By Karen Chen and Mackenzie Claggett

Canada presents itself to the world as a place where “those fleeing persecution, terror and war” are welcome. It is a reputation that Prime Minister Justin Trudeau touted on Twitter following the decision in the U.S. to institute a travel ban against several Muslim-majority countries and refugees. It is a reputation the Supreme Court affirmed when it released its Singhdecision 34 years ago on this day, April 4, finding that the constitutional right to life, liberty and security of a person extends to those seeking refuge in this country. It is a reputation we must uphold.

As law students engaged in refugee advocacy at the University of Toronto’s Asper Centre for Constitutional Rights, on this Refugee Rights Day, we call on the government to suspend or terminate the Safe Third Country Agreement (STCA).

Under the agreement, asylum seekers who attempt to enter Canada from the United States at border ports of entry are turned away and forced to seek protection under the American system.

This means that while Canada’s internal laws and policies may reflect our commitment to refugee rights, we are complicit with America’s asylum system under the Trump administration.

This will be especially true if the government decides to expand the agreement to cover all asylum-seekers to Canada, who were previously in the U.S. It was reported this week that Canada and the US have moved towards doing so.

By continuing the STCA, the Canadian government forces asylum seekers to choose ever more dangerous and clandestine routes of entry.

On Refugee Rights Day, let us remember the choices Canada has made as a country that respects the rights of those fleeing violence. After 157,000 displaced persons immigrated to Canada following the Second World War, Canada signed the 1951 Refugee Convention to recognize its willingness to take in refugees. In the 1980s, Canada developed a world-renowned private-sponsorship program to assist thousands of Vietnamese, Cambodian, and Laotian refugees find secure settlement. Over the past decade, Canadians have aided more than 40,000 Syrian refugees with this program. This past December, the Canadian government signed the United Nations Global Compact for Safe, Orderly, and Regular Migration. The compact provides a non-binding framework for governments to develop human-rights based migration policies, including objectives to reducing vulnerabilities in migration, strengthening certainty in migration procedures, and empowering migrants to achieve social cohesion.

Being part of the STCA means American refugee policy becomes Canadian policy. When the STCA came into effect in 2004, the underlying rationale was that both countries offer “generous systems of refugee protection” and therefore are safe for asylum seekers.

Much has changed since then.

Since the start of the Trump Administration, there is ample evidence to suggest that “safe” is a mischaracterization of the American asylum system. The family separation policy is one example of this. In November 2018, the Trump administration attempted to deny refugee protection to all claimants who did not enter the United States through a formal port of entry. This rule contradicts Article 31 of the Refugee Convention which imposes an obligation that countries not punish asylum seekers for the manner in which they enter the country. While two Guatemalan children died in immigration custody, the Trump administration announced in December 2018 it would force asylum seekers at the southern American border to remain in Mexico until their court hearing. The result has been a humanitarian crisis that puts the health and safety of asylum seekers at risk due to the lack of support services available to provide housing, medical care, and other necessities. By February 2019, President Trump used this government-manufactured crisis as the basis for declaring a “national emergency” to secure additional funds and build a barrier on the southern border.

Although we recognize the benefit of international cooperation when it comes to processing asylum seekers, such benefit no longer exists if our cooperation is with a country that does not adhere to international refugee law or the ideals Canada espouses with respect to refugee rights. The Canadian government must recognize the harm the STCA is currently imposing on asylum seekers and act accordingly.

Karen Chen is a second-year student at the Faculty of Law where she leads the Asper Centre’s Refugee and Immigration Law student working group. She is also a member of the Canadian Association of Refugee Lawyers.

Mackenzie Claggett is a first-year student at the Faculty of Law and is a member of the Asper Centre’s Refugee and Immigration Law student working group.