Opinion: By its own terms, the STCA can only operate if both Canada and the U.S. qualify as "safe" countries for asylum seekers. By that measure, the U.S. is often unsafe for asylum seekers
The Supreme Court of Canada is poised to hear a constitutional challenge to the Canada-U.S. Safe Third Country Agreement. The STCA requires asylum seekers to seek refugee protection in the first country of arrival — either Canada or the United States. It only applies at official ports of entry along the land border. Since its implementation in 2004, the STCA has blocked thousands of asylum seekers from lawfully seeking protection in Canada.
Few Canadians realize that the STCA was implemented for the specific purpose of preventing asylum seekers from accessing refugee protection in Canada. The STCA does so by leveraging Canada’s geographical remoteness from most of the world’s conflict zones. Asylum seekers trying to reach Canada overland have to pass through the United States, whereas asylum seekers trying to reach the United States do not need to pass through Canada en route. Requiring asylum seekers to claim protection in the first country of arrival means that under the STCA, Canada will receive fewer asylum seekers and the United States will receive more.
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The U.S. resisted this lopsided deal for many years, and agreed only in exchange for unrelated concessions from Canada in border management after Sept. 11, 2001. The STCA is not — and never was — about sharing responsibility for refugees between Canada and the U.S. according to any metric of equity, capacity, or fairness. Nor is it about “asylum shopping,” a term used to denigrate refugees who (for a range of understandable reasons), do not claim refugee protection in the first state they reach. It is simply about Canada exploiting its geography to evade the legal obligations it voluntarily assumed when it signed the UN Refugee Convention.
By its own terms, the STCA can only operate if both Canada and the United States qualify as “safe” countries for asylum seekers — that is, countries that afford asylum seekers the basic protections required by international law. By that measure, the United States is often unsafe for asylum seekers, and this did not begin or end with Donald Trump’s presidency. The U.S. asylum regime does not ensure due process in the determination of asylum, detains asylum seekers under horrific conditions of confinement where they cannot access support or legal assistance, denies refugee protection to women fleeing gender-based persecution, and renders ineligible refugees who do not meet arbitrary deadlines for applying. The Canadian government cannot escape responsibility for the predictable outcomes of deflecting asylum seekers into this system, even though it studiously avoids monitoring the safety of the U.S. asylum system. Nor can appeals to the political dimension of “foreign relations” relieve Canada of its own Charter or international legal obligations.
The STCA has also had the foreseeable effect of pushing asylum seekers trying to reach Canada towards irregular border crossings. Before the STCA, asylum seekers entered Canada in an orderly fashion at an official port of entry. The STCA forced them to seek informal routes into Canada, placed their lives and safety at risk, made the border more dangerous and disorderly between ports of entry, and mislabelled them as “illegal migrants.”
Some people recommend extending the STCA across the entire length of the Canada-U.S. border. The fantasy of hermetically sealing a 7,000-kilometre border is just that. Indeed, when the Parliamentary Standing Committee on Citizenship and Immigration was warned in 2002 that the STCA would propel asylum seekers into irregular crossings, the Committee conceded that should this occur, “the government must be prepared to exercise its authority to suspend or terminate the Agreement.” The government has declined to exercise that authority.
The Supreme Court of Canada now has the opportunity to evaluate the legality of an agreement whose purpose is to enable Canada to circumvent its legal obligations. Over 85 per cent of the world’s refugees reside in the global south. Canada receives a trickle of asylum seekers in absolute and relative terms. Scrapping the STCA will not dramatically change Canada’s relative contribution to asylum protection, nor will it lead to a surge in asylum seekers in the U.S. entering Canada — that did not happen before the STCA, and will not happen now. Getting rid of the STCA and returning to the normal practice of asylum seekers accessing official ports of entry will, however, help restore safe, orderly and humane management of our refugee protection system.
Efrat Arbel is an associate professor, Allard School of Law, University of British Columbia. Audrey Macklin is a professor, University of Toronto, Centre for Criminology and Sociolegal Studies and Faculty of Law.
Letters to the editor should be sent to sunletters@vancouversun.com. The editorial pages editor is Hardip Johal, who can be reached at hjohal@postmedia.com.
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