chapter  11
21 Pages

Gendered border crossings

WithEFRAT ARBEL

In December 2004, the Safe Third Country Agreement (STCA) between Canada and the United States came into effect.1 The STCA is a bilateral agreement designed to promote the orderly handling of refugee claims across the United States-Canada border. Its effect is to bar asylum seekers who are either in the United States, or travelling through the United States, from making refugee claims in Canada at the land border (and vice versa), subject to certain exceptions. Soon after the STCA went into force, a coalition comprising the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, and a plaintiff identified as John Doe, challenged its validity before the Federal Court of Canada (Canadian Council for Refugees et al. v Canada [CCR v Canada] 2007). The applicants sought a declaration that the designation of the United States as a ‘safe third country’ and the resulting ineligibility triggered by the STCA were invalid and unlawful. The concern with the STCA’s adverse impact on women lay at the heart of this legal challenge.2 The applicants argued that since the United States asylum system failed to ensure protection for many women with well-founded fears of persecution, the effect of the STCA would be to endanger women by leaving them stranded in the United States without access to refugee protection in Canada (Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe 2006, [48-50]). The applicants further argued that the STCA and its associated regulations violated section 15 (equality) and section 7 (life, liberty, and security of person) of the Canadian Charter of Rights and Freedoms and should be struck down. In November 2007, in a lengthy decision authored by Mr Justice Phelan, the Federal Court of Canada found the STCA unconstitutional and

declared it to have no force and effect (CCR v Canada 2007 [338]).3 Justice Phelan listed a series of issues that individually and collectively undermined the claim that the United States complied with its non-refoulement obligations as outlined in Article 33 of the United Nations Convention Relating to the Status of Refugees ([239-40]). He concluded that the United States’ ‘non-compliance with Article 33 are sufficiently serious and fundamental to refugee protection that it was unreasonable for the [Governor-in-Council] to conclude that the U.S. is a “safe country” ’ [240]. In his analysis of the deficiencies of the United States regime, Justice Phelan emphasized the ‘vagaries of U.S. law which put women, particularly those subject to domestic violence, at real risk of return to their home country’ ([239]). He held that United States law did not recognize gender-related persecution in a manner consistent with Canadian law, and that, as a result, women asylum seekers in the United States could be at risk of refoulement ([198, 203, 206]). In assessing the STCA’s constitutionality, the question of the United States’ treatment of gender-related asylum claims also proved significant. The applicants argued that because the United States failed to ensure adequate protection for women asylum seekers, women were disproportionately impacted by the STCA in ways that contravened the Charter of Rights and Freedoms’ equality guarantee ([315]). Justice Phelan allowed this claim. He found that the STCA could not pass constitutional muster, in part because ‘[w]omen and certain nationals are affected more harshly than other refugee claimants covered by the STCA’ ([323]). In June 2008, the Federal Court of Appeal overturned this decision and restored the STCA’s validity (Canada v Canadian Council for Refugees et al. [Canada v CCR] 2008). The Court of Appeal decision focused largely on the discretionary authority of Canada’s Governor-in-Council, and overturned Justice Phelan’s findings on these grounds. A majority of the Court

determined it was ‘not open to the Applications judge to hold on any of the alleged grounds . . . that the Safe Third Country Agreement between Canada and the U.S. was illegal’ ([82]). The Court further held that Justice Phelan had identified the wrong standard of review, and erred in finding that ‘actual’ compliance or compliance ‘in absolute terms’ was a condition precedent to the exercise of the Governor-in-Council’s delegated authority (Canada v CCR 2008, [59-63, 80-2, 92]). It found instead that proof of actual compliance was ‘irrelevant’, since this was ‘not the issue that the Applications judge was called upon to decide’ ([80]). The Federal Court of Appeal also overturned Mr Justice Phelan’s Charter findings, and held that the Charter could not apply in the case ([102-3]). The two courts also differed in their treatment of the STCA’s gendered impact: while the analysis of the STCA’s adverse gender impact lay at the heart of the Federal Court decision, it all but disappeared in the Federal Court of Appeal’s decision. In the 71-page judgment issued by the Court of Appeal, the words ‘gender’ and ‘women’ each appear only once in the court’s summary of the claims before it, and not at all in its analysis of the legal issues in dispute. In retrospect, that the focus of the STCA’s gendered impact all but disappeared from the Federal Court of Appeal’s decision can be seen as a harbinger. The Supreme Court of Canada denied leave to appeal, and thus the STCA remains in operation (Canadian Council for Refugees et al. v Canada 2009). Since the STCA’s mandated monitoring provisions focus narrowly on whether the STCA is being applied according to its terms, not on how the STCA, when correctly applied, impacts asylum seekers, not much information is available about its effects, let alone about its effects on women (STCA Art. 8(3); Canadian Council for Refugees 2005, 30). The official data recorded by the Canada Border Services Agency paints an incomplete picture: it shows only that fewer women are making asylum claims at the United States-Canada border post-STCA, but says little about what happens to them beyond this fact. In a recent report I co-authored with Alletta Brenner, Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion, we examined a series of Canadian border measures including the STCA, and analysed their effects on asylum seekers (Arbel and Brenner 2013). The report was released by the Harvard Immigration and Refugee Clinic in November 2013, and overseen by its director Deborah Anker. The findings presented in the report were based on research and data collected through fact-finding investigations at major ports of entry along the United States-Canada border and adjacent city centres. In the course of these investigations, we interviewed representatives from non-governmental organizations, faith group workers, and refugee shelters, as well as practitioners and attorneys on both sides of the border. We asked questions about how the STCA impacts women, but were able to collect very little information about its gendered impact. As a result, we did not specifically address the STCA’s impact upon women in the report.