How renegotiating the Safe Third Country Agreement could put refugees at risk

ANALYSIS: Reports suggest Canada is looking to reopen the STCA with the U.S. — but, some experts warn, that could have negative consequences for asylum seekers
By Chantal Braganza - Published on May 7, 2018
a sign at a border crossing saying, "International Boundary"
Ontario has seen a 190 per cent increase in asylum claims since 2013. (Stephen C. Host/CP)

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​There’s a political cartoon I often think of when I come across stories about Canadian refugee policy. Created by Bruce MacKinnon, it shows Justin Trudeau, in a fitted suit and red tie, standing behind a United Nations podium scarfing down an entire bag of Skittles. It was published in September 2016 — the same week that Donald Trump Jr. made headlines for posting a tweet that described Syrian refugees as a bowl of the rainbow candies studded with a few poisoned ones that could “kill you,” and that Trudeau made his first major speech at the UN General Assembly and spoke at length about Canada’s efforts to resettle Syrian refugees. The cartoon plays on a long-held belief about our country: we are accepting of asylum seekers, especially when compared to our southern neighbours.

But that belief can, at times, be difficult to square with reality. Canada is far from a global leader in terms of asylum claims: we rank 21st among OECD nations when it comes to per capita rates. And certain decisions by the federal government suggest that our state’s appetite for Skittles — or whatever twee metaphor most appropriately describes people seeking a safe haven from war zones and political persecution — isn’t quite as healthy as we’d like to believe.

For example, there’s the extended detention and interrogation of Sri Lankan Tamils who arrived on a boat seeking asylum in 2011; the removal of Roma refugee claimants in the first half of this decade; and the recent deportation of North Korean refugees who arrived here via South Korea.   

Reports that Canada is seeking to renegotiate the terms of the Safe Third Country Agreement (STCA) are the most recent example of this disconnect between our policies and our self-image. Signed in 2004, the post-9/11 treaty was intended to regulate the flow of refugees between Canada and the United States by officially treating both countries as safe. Asylum seekers must apply for refugee status in the country they arrive in and cannot switch states, unless they qualify for one of a small number of exemptions. Either country, then, can turn border crossers back at official points of entry. When someone arrives on Canadian soil outside of these points of entry, as increasing numbers of people have been doing by foot via Manitoba and Quebec, it’s Canada’s responsibility to process their refugee claim.

What recent reports suggest, although the federal government hasn’t outright confirmed this, is that the intention is to have the STCA apply to the entirety of the U.S.-Canada border. While refugee lawyers and human rights advocates have been calling for the agreement as it stands now to be repealed — in 2017, a group of Canadian law schools launched a legal challenge against the treaty on behalf a Salvadoran family attempting to gain claim asylum in Canada — such a change, they say, would further dim the prospects of refugees seeking asylum and likely put them in danger.

“It would certainly bar a large number of people from claiming refugee status in Canada,” says Raoul Boulakia, an immigration lawyer in Toronto and an executive member of the Refugee Lawyers Association of Ontario. “Knowing how the U.S. is treating refugees, and how policies have shifted procedurally for refugees — if Canada has that immediate option to detain, we know that we will effectively be fast-tracking some people towards being sent back to their country. It’s a very grave decision.”


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Prior to the STCA’s signing, says Boulakia, individuals crossing from the U.S. at an official point of entry could claim refugee status and have their cases adjudicated here. While the American system hasn’t always been heavily politicized in recent decades, the ability to cross through the United States to Canada has benefited certain groups, such as citizens who left El Salvador during the civil war in the ’80s. “[Salvadoran] refugees were rejected because the U.S. was supporting the government at the time” he says. “People could have fled to Canada and gotten protection.”

A recent and pronounced spike in claim numbers over the past 18 months has likely contributed to these requests for talks. Earlier this year, the RCMP noted that it had intercepted more than 20,000 refugees between border checkpoints, while Reuters reported at the beginning of this month that a record 46,641 asylum claims had been made in 2017 — the highest number in decades. Quebec, Manitoba, and British Columbia have seen the most significant upswings; for its part, Ontario has seen a 190 per cent increase since 2013.

This increase has certainly placed a strain on the systems in place to hear and process refugee claims, though Michael Battista, a senior partner at Battista Smith Law Group and a specialist in citizenship and immigration law, says that “there are ebbs and flows in migration patterns. This is clearly an uptick in people arriving, but it changes.”

“Is the appropriate response to try to fortify the border?” he asks, noting that that would come with its own price tags for enforcement and investigative tribunals. “Or to put efforts into the orderly processing of people’s claims?”

“I think the government has responded appropriately by dedicating resources to refugee processing,” he says, referencing the $74 million in last year’s federal budget that was earmarked for alleviating the claim backlog. 

“When people are desperate, they’re going to find a way. I just think that if there’s any attempts to fortify the border, people will find more dangerous ways of trying to get across.”

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