Jordan: Any legislation that deals with the Canada-US border right now is something of a hot button issue, especially when we’re discussing asylum seekers and refugees. And a ruling last week sent shockwaves through the people in the community that work in this space.
News Clip: Federal court of Canada has ruled the so called Safe Third Country agreement between Canada and the United States invalid because it violates the Charter of Human Rights.
Jordan: The safe third country agreement has been a divisive issue in immigration policy, basically since it came into effect almost two decades ago. The rise of the Trump administration and their practices in the United States has only ramped up the pressure from advocates. And now comes a ruling which could be historic and could meaningfully change the lives of thousands of people who come to Canada, seeking protection only to find themselves turned back, and land in American detention centres. But will the ruling really change anything? What is the Safe Third Country agreement and what does it say? What’s it supposed to do and what does it actually do in practice? Does this ruling have any teeth? And will the Liberal government fight it? And as we wait up to six months to find out what happens next, what’s happening to the people whose lives hang in the balance? I’m Jordan Heath Rawlings. This is The Big Story. Sharry Aiken is a professor of immigration law at Queens University. Hello, Sharry.
Jordan: Can you start, simply because I know this can be kind of a complicated topic, just walk us through exactly what the Safe Third Country agreement is and you know, where did it come from and how long has it been in effect?
Sharry: Absolutely. The Safe Third Country agreement was actually first dreamed up in the immediate aftermath of 9/11, when the United States was increasingly preoccupied by border security and speaking about the importance of establishing a North American perimeter in order to safeguard against perspective terrorist threats. And the Safe Third Country agreement was initialed as part of a multi-pronged smart border declaration in December, 2001 between representatives of both countries. Now, it should be mentioned, it’s not the first time that Canada try to establish this sort of agreement. Indeed long before 911, the idea first surfaced on the Canadian side, but the Americans vetoed it. They didn’t see anything in it for them, particularly because it would mean more asylum seekers staying in the United States. And so the idea essentially died on the drafting table. But it was resurrected in the immediate aftermath of 911. And at that point it gained traction on both sides of the border. The United States saw it as an opportunity to obtain concessions from Canada. So we’ll give you this, and in return, you’re going to agree to more joint border patrols, more integration along our shared border in terms of surveillance, border monitoring and enforcement, this will be the quid pro quo and that’s indeed how the agreement went forward. It was eventually implemented in 2004 and has been in place for the past 16 years.
Jordan: And what is it? What does it say?
Sharry: What it essentially says is that, wherever a refugee claimant lands is the country where they have to initiate their refugee claim. So as a practical matter, very few asylum seekers land in Canada first and seek entry into the United States. There’s far more international flights into the United States, from everywhere else in the world. And of course, the United States has a Southern border with Central American countries with Mexico, and that tends to be a channel upwards. So as a practical matter, what it means is that every asylum seeker who ends up in the United States, even if their intention was only to transit, if they come to the Canadian border, they will be turned back with very few exceptions, and required to pursue their asylum claim in the United States. The principle behind that, if we can call it a principle, is the idea that refugee claimants should seek asylum in the first country they arrive in. Now that’s not actually a legal principle. It’s not a principle of international law, but it’s a policy measure that many States it’s increasingly invoke in order to deflect asylum seekers from their territory. So we don’t want you, you go back to where you transited through and seek asylum there. So it’s a deflection tool. In this case, it means that asylum seekers who otherwise would be heading towards Canada are forced to pursue asylum claims in the United States. And what that means as a practical matter is that they end up being detained in immigration holding cells, because virtually all asylum seekers in the United States these days are detained on initiating a claim.
Jordan: How far does that go back? Is that a relatively new practice? Or is this something that’s been happening since the agreement came into effect?
Sharry: Well, indeed, it’s a longstanding problem and this is not the first time the agreement was challenged. it was challenged in court in the sort of early years of the agreement for precisely these reasons, because asylum seekers were being detained, often for prolonged period of time, often in solitary confinement, and very often in egregious conditions. So this is by no means a new policy in the United States, but I think it’s fair to say that conditions in detention have worsened since President Trump assumed office. So we’ve seen an intensification of the problem, as opposed to the creation of the problem. It certainly predates the Trump administration, for sure.
Jordan: So that’s kind of the background in the current situation. Now what happened last week? Who ruled on what exactly?
Sharry: So it was actually the federal court of Canada that ruled that provisions of the Safe Third Country are resulting in breaches of Canada’s Charter of Rights, specifically that the certain detention of asylum seekers when they’re turned back from the Canadian border violates those individuals’ rights to liberty and security of the person, and the Canada must take steps to immediately stop those violations. The court left open to the government of Canada how it goes about doing that, whether it gives notice to the United States to temporarily suspend the effect of the agreement, which it can, pursuant to the terms of the agreement itself, or whether it takes, the bolder step of actually amending the regulation that authorized the agreement in the first place. The court doesn’t tell the government how to fix the problem, so much as tell the government that it is a problem. And the government was given six months to fix it.
Jordan: What kind of teeth does that ruling have? Obviously it doesn’t mean they have to do anything right now, but if they don’t in six months, or if they do something that the court rules is not sufficient, like what actually happens?
Sharry: Well, because we live in a country that ascribes to the rule of law, it’s the rare instance that a government, whether federal or provincial, openly flouts a court ruling. It has happened. And when that does happen, the aggrieved party can go back back to court, for a declaration addressing the question of remedy. That actually happened in the case of Omar Khadr’s ongoing legal challenges. But typically speaking, Canadian governments of every stripe will seek to implement a court ruling. They may seek to implement it to the lowest common denominator, in other words, not to maximal effect, to take the path of least resistance, but typically they do. They often wait until the last possible minute. I mean, we’ve seen that in relation to other federal court rulings and other court rulings where Canada has been found to be in violation of the Charter. It takes the government often some time to figure out what to do. But they typically do implement the court ruling, or appeal. Right? The government may decide that it doesn’t wish to follow the court’s ruling. In which case it will take the formal step of initiating an appeal in the Federal Court of Appeal. If they do that, no doubt the case is going to be wrangled in litigation for a number of years, because it will go to the Federal Court of Appeal and no doubt, from there to the Supreme Court of Canada. If the government decides to appeal, it will likely at the same time, seek a stay, in relation to the operation of the federal court’s ruling. Which means that in effect, the ruling, has no immediate effect. And indeed, you know, it’s status quo until the appeal is finally disposed of. So if that happens, the effect of this ruling is actually very limited as a practical matter because asylum seekers will still be impacted by the ongoing operation of the safe third country agreement.
Jordan: So before we get into kind of where we go from here, tell me a little bit about the reaction to this ruling, I guess in immigration law circles and maybe among people who advocate for asylum seekers? You know, how huge is this for them? Is it that huge?
Sharry: Well, it is very significant. When the ruling came down last week, I think it’s fair to say that refugee advocates and human rights advocates on both sides of the border, celebrated the victory. Although, everyone understood that it remains to be seen what the government decides to do with it. But the fact that rural court judge found Canada in violation of the Charter.In relation to this agreement is very significant.
Jordan: What about you, as someone who studies this stuff, what did you think? Were you surprised?
Sharry: I really wasn’t surprised. I attended most of the five day hearing back last fall and the arguments presented by the applicants, I have to say from a dispassionate perspective, were overwhelming. Most particularly, the strength of the evidence proffered was really impressive. For example, the court heard from one of the applicants about her experience approaching the Canadian border, and then being returned to immediate detention. She was put in solitary confinement for a week, completely alone and absolutely terrified, not knowing when it would end. After the solitary confinement period had concluded, she was in the sort of general population. She’s a Muslim woman. She was worried that she wasn’t given Halal food. She couldn’t eat because she didn’t know if the food was safe for her to eat. She became very malnourished, and really just described in very clear detail the abhorrent conditions. And the court didn’t just hear from isolated cases. There were affidavits presented by US asylum experts, both scholars and advocates, speaking of their experience working with clients who shared similar stories. So it was very clear to the court that these weren’t isolated anecdotes, but rather broad trends that were happening in a systematic way in the United States.
Jordan: So what, if anything, has the government said in response to this? Do we have any idea what the Canadian government will do next?
Sharry: We don’t, actually. In anticipation of our conversation today, I actually did a little bit of research to see if there were any inclinations, or at least any murmurings. And we haven’t heard. I mean, I will tell you that despite very loud and vocal opposition to this agreement, we’ve seen this current government intent on maintaining the agreement and indeed speaking about modernizing it, with the view that perhaps all the exceptions which currently stand, which allow, for example, minors under the age of 18 to be exempted from the operation of the agreement, exemptions for people with immediate relatives in Canada, and also exceptions for people who would potentially face the death penalty in the United States, those are exceptions.We don’t know, but the government’s murmured about extending the agreement. So that’s, you know, certainly well before the federal court ruling, but in the face of this ongoing opposition, the government has been steadfast in maintaining the importance of the agreement as a measure to ensure border integrity, and integrity of our refugee system. And in my view, those justifications simply don’t stand up in the face of what we see happening in the United States today.
Jordan: Has the government and the States, so the administration, said anything about this ruling? Do we know, first of all, I guess if they’d be happy with the decision? And will they influence what the Canadian government does next, whether or not they appeal, et cetera?
Sharry: That’s an interesting question. You know, disagreement was never directly in American interests, in the sense that it resulted more refugees staying in the United States. And as you know, as many of us realize President Trump has not been friendly toward asylum seekers or refugees more broadly, whereas the United States was always the largest refugee resettlement country in the world hosting, and indeed inviting, refugees from around the world to come to the United States through formal resettlement channels. That program was suspended under President Trump, right? And the overall numbers of refugees coming to the United States through those formal resettlement programs has completely and dramatically been reduced. So the fact that there’s going to be, you know, more refugees leaving the United States and coming to Canada would not necessarily be something the American administration, at least the current administration, would be unhappy about. On the other hand, it is true that the United States has used the existence of this agreement to justify concluding similar agreements with other countries, right? And that is more in line with America’s interest of deflecting asylum seekers. So, you know, a similar agreement with Mexico, similar agreements with Central American states. So the fact that there is this agreement with Canada kind of provides the cover for more similar deals with other states. Having said that, I don’t really think that the United States is going to be too preoccupied by this federal court ruling. I also don’t think the United States would be too preoccupied if Canada moved immediately to suspend the agreement. Because ultimately it would just mean more asylum seekers coming to Canada.
Jordan: Will we start seeing, if they did suspend it, or the six months run out and they don’t find a way around this, would we start seeing more asylum seekers directly from the United States? Because there’s been no shortage of Americans discussing conditions in that country right now, and wanting to run to Canada.
Sharry: Well, given the way the refugee definition is framed, very few US citizens qualify for asylum. It’s not to say never, but–
Jordan: Right. But this wouldn’t impact it?
Sharry: No, but in terms of the numbers of people who are nationals of other countries and who are currently in the United States and wanting to pursue asylum claims, will we see more? Well, the fact of the matter it’s already possible for refugees to circumvent the agreement. I mean, those who are able and have the means cross outside of the formal ports of entry at other land crossing. So for example, we’ve seen at Roxham Road in Quebec, and we see people doing that. I don’t think there’s any reason to think that there’ll be more people beyond what we’re seeing already. And I would also point out that we’re living in an era of severe travel restrictions, so even if the Safe Third Country agreement were lifted tomorrow, the fact of the matter is many refugees from countries around the world are unable to make it to North America right now. So I don’t expect, we would see a huge spike. Certainly what the federal court itself said was that the government had not presented any convincing evidence that the numbers would spike so significantly that the Canadian government wouldn’t be able to handle it. The court noted that there was simply no persuasive evidence on that topic. And I guess I would put the whole question of numbers into broader perspective and say that the overall numbers of cases being referred to Canada’s immigration and refugee board ebb and flow contingent on what’s going on in the world. Right now there’s a spike in asylum claims globally. There’s more refugees today than there’s been at any point since the Second World War. There’s some 26 million refugees around the world. Canada gets a tiny percentage of that number and even if the Safe Third Country agreement was lifted tomorrow, we would still be receiving a tiny percentage of that number. In any given year, our asylum claims, you know, maybe at a low of some 10,000 cases being referred to the board, to a high of somewhat less than 60,000. But even still, it’s a small number in a fraction of our overall immigration intake in any given year.
Jordan: So what do groups who advocate for refugees want to see happen here? Is it simply, okay, the ruling is in lift it and let’s move on? Or are there other things that they would like to see done as well, or instead?
Sharry: Well, I think suspending the agreement is the critical next step for refugee advocates. I think, more broadly, the Safe Third Country agreement is just the tip of the iceberg in Canada in terms of measures that are seeking to make access to our refugee determination system ever more restrictive. There were measures put in place, both by the previous Conservative government, as well as this government, which make it more difficult for certain kinds of refugee claimants to actually initiate a claim in Canada. And I think, you know, refugee advocates are looking at those measures and concerned about them as well. So there’s no question that the Safe Third Country agreement is one of many restrictive measures that impede the full realization of refugee rights in Canada.
Jordan: Thank you so much for explaining this to me, because I didn’t know much about it. And you know, if you want to, cause I know, some professors are hesitant to do this, if I asked you to speculate on where this will be six months from now, what are you thinking?
Sharry: Well, I think it depends on how much more hot water this government finds itself in. Unfortunately, refugee policy often tends to be filtered through the lens of big P politics, right? A government that’s confident of its position is much more likely to do the right thing. And, what my concern is that this is a government on the defensive right now, that’s worried about an attack from the right, and in particular from the Conservative Party of Canada. And in order to maintain it’s somewhat delicate position in a minority government situation, it’s quite likely that we won’t see good, sound principle decisions. So what I’m going to say is, right now we know our federal government is in a lot of hot water over the WE scandal. If this blows off, you know, I think we have a better chance of seeing the government behave in accordance with the federal court ruling. If it doesn’t, I think we’re going to see an increasingly defensive government, and a government increasingly intent on protecting its hold on power. And those circumstances don’t bode well for the future of this particular issue, and refugee policy more broadly.
Jordan: That’s great insight, Sharry. Thank you so much for joining us today.
Sharry: My pleasure.
Jordan: Sharry Aiken, an immigration law professor at Queens University. That was The Big Story, for more from us head to thebigstorypodcast.ca, all our episodes are there. We’ll do another episode on this topic, hopefully less than six months from now. You can also talk to us, email us at email@example.com. Follow us and talk to us and favourite all our tweets on Twitter. We are at @thebigstoryFPN. And of course, subscribe for free, and when you do please rate and review and offer us some feedback, even if it’s bad, I will take it to heart. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.
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