The government said the abolition of the agreement would result in an “inflow” of asylum seekers at the border, making it more difficult for several levels of government to maintain the existing refugee system, including the provision of housing and other social services. Stratas` decision does not refer to the original decision of the Federal Court of Justice that the border agreement is unconstitutional. However, it allows the government to wait for the outcome of its appeal before deciding what to do at the border. “For the second time, the Federal Court of Justice has found that Canada`s safe-third country law is unconstitutional,” said Justin Mohammed, Amnesty International Canada`s human rights defender. “While the court gave Parliament six months to create counter-measures, the government missed this opportunity in favour of an appeal. We hope that the Federal Court of Appeal will confirm the deadline for no asylum seeker to be extradited from Canada to deal with the horrors of U.S. pre-trial detention after January 2021. The government appealed McDonald`s decision and argued that there would be “irreparable harm” to the rule of law and the common good if the border agreement were overturned. The underlying principle supporting the agreement is that Canada and the United States consider each other “safe” for asylum seekers and countries where refugees wishing to be subject to a fair determination of their rights. At the recent hearing before Stratas J., counsel for this group argued that the government`s assertion that there would be an “increase” in new asylum seekers at the border if the agreement was struck down was “speculative” and “hypothetical”. McDonald gave the government until the end of January to prepare for the break of the agreement because it understood that it was in the public interest not to terminate the agreement immediately. Regardless of where or how a person makes a refugee claim, that person still has to go through a lengthy and complex legal process to have their claim processed.
Each asylum application focuses on the burden of proof that an applicant has a justified fear of persecution or violence in his or her country of origin. The burden of proof rests with the applicant to prove in Canadian court proceedings. To determine whether the STCA has focused on personal safety, the CF has also focused on the experience of remand persons, including inadequate medical care and legal representation, the “cold” environment, the cruel treatment of inmates, and the lack of basic communication with family members (CCR/Canada, points 96, 110-112). In addition, the CF found that applicants were exposed to a “real and non-speculative” risk of refoulement – a return to the country where they claimed to be persecuted – that would occur if detained in the United States and had limited access to the documents and legal representation necessary to file a refugee claim (CCR/Canada, item 106). On the basis of the complainants` evidence of physical and psychological suffering, the CF concluded that the safety of individuals had been sufficiently associated with “the action of Canadian officials in the removal of complainants to the United States where they are detained” (CCR/Canada, point 113). It should be noted, however, that the CF has made it clear that “it is the effects of detention, not the current state of the U.S. Asylum Act, that enhances the security of the interests of individuals” (CCR/Canada, point 113). If the government wins its appeal, which will probably be heard in late February or early March, the border agreement will almost certainly remain intact.