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Globe & Mail Lead Editorial Sat 1 December 2007 The Globe's editors have every right to make a case for suggesting that a Federal Court decision about Canada's Safe Third Country Agreement (STCA) with the US which the editors don't like should be appealed - as they did on December 1st. However, they have no business misrepresenting the facts, misleading Canadians about their constitutional democracy, misrepresenting the concept of refugee protection, and implying that asylum seekers can be treated differently with respect to return to torture than Mr Arar who was "not an asylum seeker". For starters, exposing a person to a real risk of torture is prohibited by international human rights treaties. Whether the person is an asylum seeker or a Canadian citizen is irrelevant. Second, one need not wait for the US government to explicitly return persons to torture. It is exposure to a real risk of that return which the international treaties prohibit. On the facts, the Globe's own earlier reporting on 30 November notes "... ‘The United States' policies and practices do not meet the conditions set down for authorizing Canada to enter into a STCA,' Judge Phelan wrote in his 126-page decision. … Judge Phelan also concluded that the Canadian government has not conducted the ongoing review of the STCA mandated by Parliament 'despite both the significant passage of time since the commencement of the STCA and the evidence as to U.S. practices currently available.’" In other words, the Judge found that the STCA, or "pact" with the US did not meet the Canadian parliament's own conditions for such an agreement. So in contrast with the editor's implications, the Judge appeared to be supporting parliament's wishes on the pact. The editors find it "a strange view" which allows differences in rules between two countries sufficient to overthrow an international treaty negotiated by two elected governments. Yet a Judge in Canada has every right to question laws, or treaties, which impinge on individual rights and freedoms. Canada is a constitutional democracy. The government's wishes and parliament's wishes are tempered by human rights granted by the Canadian Charter of Rights and Freedoms as applied by the courts. Checks and balances on the authorities’ powers are important. Towards the end of the editorial, the editors argue essentially that upholding human rights obligations will siphon off resources which could be better spent on Canada's charitable refugee resettlement activities in the world. This is an irresponsible argument. Maintaining a rule of law, and ensuring a fair trial for those whose important rights are put at risk by actions of the authorities, are fundamental to a constitutional democracy. It is not a matter of choice. If more resources are needed for resettlement, in times of tax surpluses they can be found elsewhere, and not at the expense of asylum seekers in Canada. In the end, Canada can only choose what it does itself. It can decide to honour those obligations it has taken on. These require Caanda to protect persons it finds under its jurisdiction at a border from a foreseeable real risk of refoulement or return to a real risk of torture at the hands of another State. That is what refugee protection is all about. Judge Phelan appears to have understood this. |
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