Scrap the Safe Third Country Agreement

The federal government plans to resettle 30,000 refugees in Canada in 2020-21, which is laudable but modest at a time when the United Nations estimates that 79.5 million people were forced to flee their homes in 2019.

Canada is a wealthy country with the capacity to help out but there are numerous obstacles involved. One of them is the Safe Third Country Agreement (STCA) that Canada signed with the US in 2004. The agreement recognizes both countries as being “safe” for migrants who make refugee claims. The assumption is that they will receive due process in either nation, so they must seek asylum in the country of arrival.  As a result, when asylum seekers appear at official border crossings, Canadian officials regularly send them back to the U.S.

US unsafe

Church and human rights groups have argued for years that the US is no longer a safe country for asylum seekers. By returning them to the U.S., Canada knowingly exposes those people to harsh treatment. They are incarcerated, treated like criminals, and sometimes deported back into deadly situations. This predates the administration of recently defeated President Donald Trump but became much more pronounced on his watch. It is not immediately clear whether, or how quickly, the situation will change under a Joe Biden administration.

Arguments against the STCA were brought forward in a legal case by the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and several individuals. Federal Court Justice Ann Marie McDonald ruled in July 2020 that Canada’s use of the Safe Third Country Agreement (STCA) is illegal. She wrote in her judgment that the STCA violates the Charter of Rights section guaranteeing “the right to life, liberty and security of the person.” Judge McDonald gave Ottawa six months to say how it will remedy the situation.

“Terrifying and traumatic”

Nedira Mustefa, a Muslim woman from Ethiopia, was one of the applicants in the case. After her attempt to enter Canada, she was sent back to the US, where she was immediately detained and held in solitary confinement. Mustefa described that as “a terrifying, isolating and psychologically traumatic experience” during which she lost 15 pounds (seven kilograms).

The Canadian government and other respondents in the case argued that Mustefa’s treatment did not meet the criteria of “shock[ing] the conscience.” Judge McDonald disagreed. “In my view, Ms. Mustefa’s evidence alone meets this test and is sufficient to ‘shock the conscience.’” She wrote that Canada cannot turn a blind eye to such consequences.

Following the judgment, groups which initiated this case are calling for an immediate halt to Canada’s turning refugee claimants back at the border. The government now says it will appeal the ruling.

Perilous circumstances

The people most adversely affected by the STCA are those sent back to the US, but there are other consequences as well. Due to the increasingly harsh treatment of all migrants in the US, an increasing number of migrants are shunning official border locations. They are risking irregular crossings at remote places such as Roxham, Quebec or Emerson, Manitoba. Often, they do so with assistance from individuals who charge them abundantly for the service, and sometimes leave them in perilous circumstances. In January 2017, a man from Ghana lost all his fingers and a toe to frostbite during a border crossing to Emerson. Municipal officers there, and elsewhere, are unhappy about having desperate strangers appear suddenly in their communities and say they do not have the resources to welcome them.

Once they enter the country in that irregular way, migrants can stay until their refugee claims are processed, but irregular crossings have created an administrative logjam. The Immigration and Refugee Board of Canada, which adjudicates all refugee claims, had a backlog of 87,000 cases at the end of 2019.

Irregular border crossings are a logical response for desperate people, but they also fuel nativist and far right movements. In the 2019 federal election, Maxim Bernier and the People’s Party proposed building a border wall. Thankfully, Canadians have largely avoided scapegoating, but there is a justified concern about managing refugee arrivals and arrangements for housing, language training and employment.

No blind eye

Despite the legal and political debates involved, our responsibility is clear. We cannot turn away those who say they are fleeing persecution in their homelands. There must be a fair process for adjudicating their claims. The Safe Third Country Agreement offends against that fair process, and the Canadian government should abandon it.