by Eva van Loon

The bench of the Federal Court is probably not the first place most of us would look for courage in the legal field, but Mr. Justice Michael Phelan’s recent judgment is a sprightly example of Canada having the guts to sing its own tune.

Federal Court, limited to national legal areas like marine law or immigration, seldom sings a solo in the oratorio of Canadian provincial and appeal courts. But if Justice Phelan’s 124-page judgment in a refugee case is not successfully appealed, it will have shattered the “harmonization agreement” Canada signed with the US right after 9-11.

This “safe third country agreement” forces refugees to claim asylum in the country they first enter, US or Canada. Sounds innocent enough? By happenstance, 40% of refugees first set foot on American soil rather than Canadian, but America has a far more restrictive asylum policy. For example, during the 80s, the US sent back refugees from countries whose dictatorships it supported, while Canada tended to grant asylum.

In one way, the harmonization agreement has worked well for Canada, reducing the chorus of applications for refugee status by about 25%. However, it can also be heard as Canada’s acceptance of American standards of conduct in the so called war on terrorism, such as the Maher Arar fiasco.

Justice Phelan took notice of the Arar Report and concluded that the US is not a safe country because it doesn’t respect the Conventions on Torture, notably by returning people to their country of origins in spite of the risk of torture. “Even if the United States did not participate in the acts, it indicated to the commission that it respected Article Three of the Convention against Torture. The facts surrounding the Arar case furnish us with cause to seriously doubt that assertion.”

The Canadian government was wrong to assume the United States honors its international obligations with respect to torture, writes the judge. “The policies and the practices of the United States do not respond to established conditions allowing Canada to conclude an agreement [with the US] on safe third countries.”

Asylum don’t mean a thing, without that safety thing, I’ll bet His Lordship took a big breath before intoning this brave judgment. Jack Layton chimed in, “He’s done what Stephen Harper refuses to do, that is, to renounce the George W. Bush style when it comes to dealing with international questions and to assert Canadian independence and autonomy.” The NDP party believes the harmonization agreement should be tuned out entirely.

But it’s not over until the fat lady sings, whoever she is in this metaphor. Cock an ear to the Bench on January 14, when the government and the refugee-defense organizations will make recommendations to the Court.