What striking down of the Safe Third Country Agreement says about Canada: it’s in the small print!

Complicity in the commission of a crime is as much a crime as the crime itself, says Ron Poulton

Ron Poulton

A plaque on the Statute of Liberty in the harbour of New York reads in part:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!

The next line on that plaque could now be added to read:

“And we will lock you up in solitary confinement with common criminals and inflict tortures on you until you agree to leave our shores!”

The demise of liberty and hope for the “wretched refuse” that seeks new life and hope in the United States is sadly reflected in the recent decision of the Federal Court of Canada in Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795.

 The facts of the case are hard to read. What is even harder to believe is that a nation that stood for basic human rights and dignities has fallen victim to a notion that others, whether they be refugees from the south or elsewhere, are “bad hombres” whose very presence on U.S. soil risks contaminating the American spirit, or economy, or genetic purity, or something else that justifies inflicting harm on “they who come,” to quote from the book of Revelation. They who come, such as applicant in the Federal Court case Neidra Jemal  Mustefa, describes her detention in the U.S. as follows: “a terrifying, isolating and psychologically traumatic experience.”

Mustefa, who is Muslim, believes that she was fed pork despite telling the guards she could not consume it for religious reasons. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds. Mustefa also notes that after she was released from solitary confinement she was detained within the general prison population. She describes the facility as “freezing cold” and states that detainees were not allowed to use blankets during the day. Mustefa says she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

Just so we are on the same page, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as follows:

“ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

I am pretty sure that being kept in solitary confinement in a freezing cold cell without a blanket, and being forced to eat a food one’s religion prohibits — all because the person tried to make a refugee claim at a border — constitutes torture.

The Federal Court agreed. In the decision released last month, Justice Ann Marie McDonald held the treatment to be in breach of both liberty and security of the person under s. 7 of the Charter. Her finding on security of the person is telling:

“Security of the person encompasses freedom from the threat of physical punishment or suffering (Singh at para 47); the accounts of the detainees demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”

The Canada–United States Safe Third Country Agreement was therefore held to violate s. 7 of the Charter and will be become inoperative in six months’ time, which will allow adjustments to be made.

But, there is something more here. It is easy for Canadians to look with disgust at a Trumpian United States and ascribe the country’s conduct to the degradation of a fallen moral empire run by a narcissistic bully, a Star Wars Jabba the Hutt of privilege. Yet that is only part of the story.

The other part of the experiences of Mustefa and fellow refugee applicants in U.S. custody lies in the hands of Canadian officials. There cannot be a breach of s. 7 here without Canadian complicity. The Federal Court held that the harms suffered by Mustefa and the others flowed “directly from the actions of Canadian officials in returning claimants to the U.S.”

In other words, Canada Border Security Agency officials were complicit in torture. These are Mr. Trudeau’s people, not the orange clown down south.

So don’t be smug about the court decision and what it reveals about the U.S. at this point in time. We suffer a softening of moral resolve for the “other” as well. Complicity in the commission of a crime is as much a crime as the crime itself. It’s in the small print of the court’s decision.

Related stories

Free newsletter

The Canadian Legal Newswire is a FREE newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered on a regular basis, providing targeted news and information of interest to in-house counsel.

Please enter your email address below to subscribe.

Recent articles & video

Award more than tripled on appeal for fired articling student at B.C. firm Acumen Law

Supreme Court saw declining leaves to appeal but more technology use in 2020

BLG’s acquisition of AUM Law will help it expand compliance services to investment management sector

Canadian Judicial Council releases handbooks for self-represented litigants

New Brunswick to require liquor servers and sellers at licensed establishments to undergo training

Bennett Jones lawyers analyze potential effects of Ottawa’s 2021 budget on trade

Most Read Articles

Award more than tripled on appeal for fired articling student at B.C. firm Acumen Law

Disbarred Edmonton lawyer Shawn Beaver has his one-year jail sentence reduced to 90 days

Canada Revenue Agency profiling of Muslim charities may pose a national security threat

Toronto litigator urges ‘changing mindsets’ in legal firms