Donald Trump is Canada's best hope for solving its border crisis - Macleans.ca

Donald Trump is Canada’s best hope for solving its border crisis

The Safe Third Country Agreement is broken. But it would be easy to get rid of if Trump actually understood the arrangement.

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A family of four originally from Nigeria walk across the border at Roxham Road near Lacolle, QC in September, 2017. (Chris Donovan)


How to solve a border crisis: Aaron Hutchins on The Big Story

      The Big Story, July 18

In retrospect, it was probably a mistake to try to enter Canada the proper way.

A Palestinian mother and her two children fled Gaza last summer, landing first in the United States before starting a drive north to Canada. They planned to make a refugee claim, but when the family arrived at the official port of entry near Lacolle, Que., the Canadian Border Services Agency promptly sent them away. It didn’t matter if they feared political persecution in Palestine. Per the Canada-U.S. Safe Third Country Agreement, the family was obligated to make its refugee claim in the first “safe country” they reached. Namely, America.

Same goes for a Tutsi man from Burundi, who lost both his parents to genocide in the region when he was an infant. He lived in an orphanage until the age of six. Finally, a boy from his soccer team asked his parents to adopt him. The couple agreed, but no official adoption documents were ever signed. Years later, his adoptive father fled to Canada and earned status as a political refugee. But when this Tutsi orphan—now an adult—showed up at a port of entry, he had no paperwork to prove the man living in Canada was his relative. Thus, he did not qualify for an exception to the Safe Third Country Agreement. He was also sent back to Uncle Sam.

Here, the refugees’ stories intersect at Roxham Road­—a remote, tree-lined residential road with a ditch now occupying the spot where pavement once seamlessly connected two countries.

After toiling in America for a short while, the Palestinian family and the man from Burundi opted to head for the Canadian border again, this time via the road from New York into Saint-Bernard-de-Lacolle, Que.—an “irregular” crossing used by thousands of asylum seekers. However, not long after walking into the embrace of RCMP handcuffs, they learned they were not only out of luck, but also being punished for doing things correctly on the first occasion.

READ: Canada’s failing refugee system is leaving thousands in limbo

“If they went to Roxham Road the first time they crossed, their refugee claim would at least be heard,” says the Palestinian family’s immigration lawyer, Stéphane Handfield. “Because they already tried to cross at a port of entry, when they tried again at Roxham Road, they no longer had the chance to make that claim.”

As for the man from Burundi, his brothers by adoption had their refugee claims accepted already—but not him. “If he had crossed illegally, he would be a very happy man who would be, by now, a permanent resident,” says the man’s Toronto-based lawyer, Raoul Boulakia. (Both parties are currently in Canada pending legal challenges.)

It’s a cautionary tale of the many loopholes and baffling rules contained within the Safe Third Country Agreement. Taken together, the laws, in effect, create an incentive for asylum seekers to avoid Canada’s official border checkpoints.

Thousands of asylum seekers cross irregularly into Canada each month, not only straining the resources of government and non-government agencies, but also testing the country’s willingness to accept individuals who simply show up at the border, get arrested and expect a future in Canada.

The anti-immigrant rhetoric and policies coming from Donald Trump’s White House might be at the heart of the influx of refugee claimants to Canada. But the flood to Roxham Road, specifically, is a by-product of the controversial Safe Third Country Agreement, which—barring a few exceptions—allows Canada to send asylum seekers back to the U.S. if they arrive at a border guard’s booth, but not if they choose an unofficial crossing point like a well-placed dirt road.

All three of Canada’s major political parties have proposals to address the Safe Third Country Agreement’s failings—but every one of their proposed fixes comes with obvious flaws.

The person in the best position to save Parliament from this three-way political standoff is the same person ensuring asylum seekers no longer feel “safe” in the so-called Land of the Free. Trump’s rhetoric creates doubts for refugee claimants that they would get a chance at a fair hearing. “If Trump actually understood how the Safe Third Country Agreement works,” says Audrey Macklin, a professor and chair in human rights law at the University of Toronto, “he’d be the first to cancel it.”

A short history lesson: the U.S. repeatedly rebuffed Canada’s request for a Safe Third Country Agreement in the 1990s. Canadian politicians argued an agreement would help both countries better manage refugee claimants—putting an end to so-called “asylum shopping” between jurisdictions and preventing refugees from having multiple hearings across countries. Instead, refugees make their case in the first “safe” country they set foot in.

Canada was always the obvious beneficiary of the proposed agreement. Because of geography and politics, there has always been (and likely will always be) more refugee claimants trying to leave the U.S. for Canada than the other way around. That might explain why America never really wanted the Safe Third Country Agreement. That is until the terrorist attacks on Sept. 11, 2001.

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America approached its northern neighbours with some new plans to tighten border security. Canada asked for the Safe Third Country Agreement as part of the new border security measures. It was a minor concession for the Americans; the deal came into effect in late 2004.

But the deal only applies at official border checkpoints on land—not anywhere else along the longest undefended border in the world. “If you fly to Pearson [International Airport] in Toronto—even if you fly from the United States, you can ask for refugee protection. If you’re on a boat, even if that boat has stopped in the U.S., and you sail into Canada, you can make a refugee claim,” says Macklin. “If you enter irregularly, walk across the border and turn up in Winnipeg, you can walk into an immigration office there and make a refugee claim.”

Canada knew from the outset that the Safe Third Country Agreement could lead to the kind of irregular border crossings seen at Roxham Road. A parliamentary committee report issued in 2002, before the agreement took effect, noted that when the entire length of a border was subject to a third-party agreement in Europe, asylum seekers would sneak into the country. Once inside, they would make the refugee claim and simply deny arriving via a safe third country.

Parliamentarians heard government money would be better used in processing a refugee’s actual claim than trying to investigate an asylum seeker’s exact route. As such, the agreement was only applied to official land border crossings, where it would be obvious and undisputable where the refugee came from. However, the parliamentary committee also noted the possibility that some asylum seekers would avoid official crossings and the risk of being sent back to the U.S. To that end, one of the report’s recommendations was: “Should an increase in the number of illegal entries to Canada be apparent, the government must be prepared to exercise its authority to suspend or terminate the agreement.”

The committee might have thought the irregular border crossings would start right away. “It didn’t,” says Macklin. “It happened 14 years later with the election of Trump and the policies he introduced.”

Andrew Scheer referred to Roxham Road as the “epicentre of the crisis at our borders.” During a visit in June, the Conservative leader went to the infamous crossing so he could witness it first-hand.

Last year, the RCMP intercepted more than 20,000 asylum seekers who crossed in places between Canada’s proper border checkpoints. It was about an eightfold increase from 2016, with the vast majority coming via this rural road into Quebec. Well into 2018, the flood of asylum seekers hasn’t waned, and the Tories criticize the Liberals for doing nothing to stem the flow. Scheer proposed expanding the Safe Third Country Agreement so that it applies to the entire land border. That way, anyone who shows up at Roxham Road would be subject to the same rules as those at a border checkpoint.

Such changes could have unintended consequences. “If people find out Roxham Road isn’t viable because they’ll be sent back to the U.S., they won’t cross at Roxham Road,” says Janet Dench, executive director of the Canadian Council for Refugees. “They’ll cross somewhere else, where there’s no RCMP around. We have a very long border.”

Scheer’s proposal would create more of an opportunity for traffickers to smuggle desperate individuals into Canada. The smuggled could then simply make their claim in the first major city they find, circumventing the agreement. “If someone pops up in Montreal into the local immigration office and says, ‘I’d like to make a refugee claim,’ Canada could suspect they came from the U.S. but there’s no documentary proof of that,” Dench adds. “And the U.S. isn’t going to take them back unless you can prove they came from there.”

ALSO: Why Canada’s status quo at the border can’t last

Closing existing loopholes would only make life more difficult for the RCMP, more lucrative for smugglers and more dangerous for asylum seekers. It could also damage Canada’s international reputation for welcoming refugees. And there’s one last hurdle: convincing the U.S. to expand the deal. “It’s not really in their favour,” says Dench.

Echoing the stance of refugee advocates and many immigration lawyers, the NDP argues the Safe Third Country Agreement should be suspended. “The U.S. is no longer a safe country for refugees, and refugees continue to risk life and limb to come to Canada,” wrote Jenny Kwan, the party’s immigration critic, in a statement last year.

The U.S. administration’s tough stance on immigration provides the context for a legal challenge to the Safe Third Party Agreement currently under way in Canada. One Salvadoran mother, a regular target of gang violence in her home country, arrived last year with her two daughters at the Fort Erie port of entry between New York and Ontario. She hoped to join her common-law husband, but was rejected based on the Safe Third Party Agreement. (She also did not qualify for an exception based on having family in Canada, since her husband didn’t have official status.)

She could make her claim in the U.S., but Trump’s attorney general, Jeff Sessions, recently ruled that those running from domestic violence or gang violence won’t qualify for asylum in America—making the Salvadoran’s case all the harder to win. “If we’re going to send them back to the U.S., and the U.S. has declared they’re interpreting the refugee definition not to include women fleeing gender-based persecution or people fleeing from criminal gangs, then we become complicit if that person is denied in the U.S. and sent back to face persecution or death in their home country,” says Dench.

Other critiques of the American system point to its time limits, which forever bar individuals from seeking asylum if they don’t make a claim within one year of setting foot on American soil. “Most refugees can make a claim within a year, but there are a number of reasons why some of them won’t: fear, improper legal advice, post-traumatic stress, trauma or other legitimate and valid reasons,” says Efrat Arbel, a University of British Columbia professor and lead investigator for a Harvard Law School examination of the Safe Third Country Agreement. “It’s a procedural penalty that has profound, substantive consequences.”

If America isn’t safe for refugees, critics argue, it shouldn’t be considered a safe third country. And yet experts also warn that terminating the agreement—and by extension labelling America as unsafe—would likely have diplomatic consequences.

“You’d be poking [President Trump] in the eye,” says Benn Proctor, an analyst with the Canada Institute of the Wilson Center, a global-affairs think tank based in Washington, D.C. He noted the president had a “Twitter tirade” after Prime Minister Justin Trudeau discussed retaliatory tariffs during a press conference at a meeting of the G7. “You could quite easily see if Canada no longer thinks the U.S. is a safe third country, he may feel attacked by that. [The Prime Minister] seems sensitive to not mess with domestic affairs in the U.S.”

WATCH: What happens when asylum seekers cross the U.S.-Canada border

The governing Liberals appear to have no intention of either terminating or expanding the Safe Third Country Agreement. The deal doesn’t exist to deny asylum to worthy applicants, said Ahmed Hussein, Canada’s immigration minister, in June. “It is about the orderly management of asylum seekers between the United States and Canada, and has actually been a very good agreement for Canada moving forward.”

But that all depends on the definition of “good.” If the goal is to reduce the number of asylum seekers to reach Canada, then the agreement has been good. Back in 2004, before the agreement came into effect, Canada received about 8,000 asylum seekers annually at border ports of entry, according to a study by the Canadian Council for Refugees. That number dropped after the agreement rendered fewer individuals eligible. “In that sense, it’s considered good,” Macklin says. “But if you consider ‘good’ in terms of orderly management, is it good having people cross frozen fields in Emerson, Manitoba, or a ditch in Lacolle, Quebec?”

From an economic standpoint, a 2017 study by the Wilson Institute found Canada may have saved an estimated $2 billion thanks to the agreement over a 10-year period by virtue of reducing the total number of asylum claims Canada needed to hear in court. But such savings can’t be expected in perpetuity, Proctor says now, in large part because technology makes it easier to find unofficial places to cross. “Through WhatsApp or a friend, you look on Google Maps and you see where Roxham Road is,” Proctor says. “Now it is almost as easy getting to Roxham Road as a regular checkpoint.”

Because it’s so easy to learn about—and then find the location of—Roxham Road, RCMP officers from across the country are now flown to Quebec, taking turns watching the border 24-7 and handcuffing every new arrival. For several weeks last year, the aging Olympic Stadium in Montreal was used as a temporary shelter because the sheer volume of asylum seekers was simply too much to handle using the resources for PRAIDA, the provincial organization that helps incoming refugee claimants.

It’s not only the location of irregular border entry points that has spread via technology, but also how they can be used to bypass the Safe Third Party Agreement. That, in turn, has meant the agreement has been made redundant, says Toronto-based immigration lawyer Matthew Jeffery. “If people are already motivated to come into Canada using these unofficial border crossings, I’m not sure it makes much of a difference whether the Safe Third Country Agreement exists or not at this point.”

Roxham Road is so widely known as an irregular crossing point, RCMP in Quebec apprehended more than 9,000 asylum seekers trying to enter there between January and May of 2018. That means this year is on pace to beat the 18,836 who were intercepted in the province in 2017. Each of these border-crossers needs to be fed, sheltered and put through Canada’s refugee claimant process. It also creates a strain on other resources—like immigration lawyers.

“We have a limited amount of cases we can look at in any given week,” says Handfield. “If we have half of the asylum claimants coming to Quebec, that’s a lot of cases.”

Amid the calls to do something about the Safe Third Country Agreement, the Liberals have proposed talks about modernizing the agreement and floated ideas like using biometrics to better track whether a refugee claimant first arrived in the U.S. or Canada. “If someone shows up in Toronto to make a refugee claim, we can put their fingerprints through the system, which showed the person entered the U.S. six months ago, so we could get the U.S. to agree to take them back. That seems to be what they’re thinking of,” says Dench. “But why would the U.S. agree to this?”

US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018.
Donald Trump — making his first trip to California as president — warned there would be “bedlam” without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the “Golden State” — the most populous in the country and a Democratic stronghold — was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. (Mandel Ngan/AFP/Getty Images)

Trump fancies himself an expert in the art of the deal. As far as deals go, the Safe Third Country Agreement is a bad one for America—especially if his goal is to keep asylum seekers at bay. Trump famously promised to build a wall along the border with Mexico, and his administration had reportedly systemically detained asylum seekers as a means of deterrence. (A recent federal court ruling called for an end to the practice.)

“As ridiculous as it sounds, the laws of our country do not easily allow us to send those crossing our southern border back where they came from,” Trump tweeted last month. In a separate tweet, he bemoaned the cost of processing the claimants.

“Hiring many thousands of judges, and going through a long and complicated legal process, is not the way to go—will always be disfunctional [sic]. People must simply be stopped at the border and told they cannot come into the U.S.,” he wrote.

It’s tough to imagine Trump backing an agreement with Canada that blocks asylum seekers trying to leave America and forces them back into the backlogged U.S. refugee determination system.

It wouldn’t be hard at all if Trump wanted to be rid of the agreement. A country has to provide written notice of an intention to terminate the deal in six months. In addition, either country can choose to give written notice to immediately suspend the agreement for three months—a suspension that could be renewed for a period of up to three months.

Trump terminating the Safe Third Country Agreement would save Canada from the potential diplomatic nightmare of having a Canadian court rule the U.S. is not safe for refugees and coming out against the existing arrangement.

An end to the deal would leave Canada with more claims to process, but it’s tough to gauge exactly how many more. The country had nearly 2,000 asylum claims refused because of the Safe Third Country Agreement last year. But thousands more cross at unofficial entry points annually—some of whom were already rejected after trying to get in the “proper” way.

With no agreement, provincial governments would be forced to share some of the load as asylum seekers no longer feel compelled to funnel to Quebec. Put simply: it’d be the exact process as was in place prior to 2004. It would also mean the same process would apply for those arriving by plane or boat or on Roxham Road. The Safe Third Country Agreement could effectively be gone by tomorrow—if only someone explained it to Trump.

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