Likely the best commentary to date on the Federal Court decision.
Will be interesting to see the commentaries and reactions by those who have roundly criticized the STCA loophole, the Roxham Road asylum seekers and the government’s handling over the next few days:
One of the things on which Canadians like to congratulate themselves is our generous treatment of refugees. And it’s true, up to a point. The protections afforded asylum applicants in Canada not only meet the standards set by the 1951 United Nations Convention Relating to the Status of Refugees, but also exceed them.
Certainly if you compare Canadian refugee policy with that of the United States, it looks considerably more liberal. But here’s the thing: For particular types of refugee claimants, Canadian refugee policy is U.S. policy. For the better part of two decades, since the 2004 Safe Third Country Agreement between the two countries went into effect, asylum seekers arriving at land-based ports of entry on the border have been routinely turned back, without a hearing.
The premise: As each country deems the other to be “safe” in terms of its treatment of refugees (defined, under the UN convention, as those with a “well-founded fear of persecution” in their country of origin), so asylum seekers may be obliged to apply in whichever of the two they first arrive in. In practice, this means the U.S. agrees to take back those applicants Canada refuses to admit; the flow is almost never in the other direction.
That, indeed, was the point. The agreement was struck at Canada’s request in the aftermath of the Sept. 11, 2001, attacks, when it was feared a flood of applicants, fleeing north from the suddenly less hospitable U.S., would overwhelm the Canadian refugee system. It was vintage Canadian hypocrisy: We would preserve our more generous system by offloading much of its work onto their less generous system.
Well, now our bluff has been called. A Federal Court judge has ruled the legislation implementing the treaty is a violation of the Charter of Rights and Freedoms, specifically its guarantees of the right to “life, liberty and security of the person.” The unspoken premise of the agreement, that the Americans’ treatment of refugee claimants may be a little rough and ready, but not so bad as to be intolerable – at least to those not forced to endure it – has been held up to the light of actual experience, and found bogus.
The histories of those who brought the case make harrowing reading: a woman from El Salvador who was raped by gang members, who threatened to kill her and her daughters if she went to the police; a Muslim woman from Ethiopia, a member of its Oromo minority, who had come to the United States as a child but now faced deportation; a family from Syria, also Muslims, fleeing that country’s civil war, only to find themselves in the America of President Donald Trump’s “Muslim ban.”
Yet in all three cases, Canadian border authorities were prepared to hand them back to their U.S. counterparts. Two of the three were spared this fate only because they were able to find a lawyer in time to file emergency stays of removal. The experience of the third, Ethiopian national Nedira Mustefa, is instructive. She was thrown in prison, held in solitary confinement for a week, and detained for a month in appalling conditions: without proper food, in freezing cold, in the same cells as criminals. She told the court she “did not know when [she] would be released, if at all.”
This is not unusual. Evidence before the court showed that those turned back at the border are “immediately and automatically imprisoned” by U.S. authorities, for weeks or even months – as an explicit penalty for having applied for refugee status. They may often find themselves without lawyers, without translators, even without access to a phone. And awaiting them at the end of their ordeal is the very real prospect of deportation, with far fewer legal safeguards than the Canadian refugee determination system provides.
There is no use pretending Canada is not responsible for their treatment, though government lawyers tried. In many cases, they are physically handed over to the Americans by the Canadian authorities whose protection they had sought. Yet there can be little doubt what awaits them on the other side, and little doubt that Canadian authorities know it. It is not the right to live in Canada they are thereby denied. It is the right not to be arbitrarily detained, or to be deported to face death or persecution in their countries of origin. It is, at the very least, the right to have their cases heard fairly, which one part of our laws loudly proclaims while another quietly denies.
As a practical matter, the Safe Third Country Agreement was already imploding under the weight of its many loopholes and anomalies: Applicants who arrived “irregularly,” between ports of entry, were not turned back, even as those who entered by the normal channels were. But now its very premise has been exposed as a lie. Whatever case there may have been for designating the United States as a safe third country while George W. Bush or Barack Obama were president, it no longer exists. Outsourcing Canadian refugee policy was always a morally dicey proposition. In present circumstances, it is untenable.
That isn’t to say that the concerns that gave rise to it are entirely unfounded. The differences between U.S. and Canadian refugee policies are bound to encourage claimants to head from one to the other. Once it is known that Canadian authorities no longer have the legal power to reject their claims out of hand, they may arrive in numbers that our offices are not equipped to handle. But the alternative can no longer be just to turn them back and hope for the best – even assuming we could. Not if we wish to live up to our own lofty ideals.
This was a decision of the Federal Court, not the Supreme Court. The judge has suspended its application by six months. The government may appeal. Or it can use the time to try to come up with a solution. Six months from now there may well be a new administration in Washington. Perhaps it may adopt a less draconian position toward refugee claimants. Perhaps the agreement might even be renegotiated, in a way that gave claimants more incentive to work within the system, because they were less fearful of the result.
But whatever happens, there can be no more pretense. The United States is not a safe third country, and we know it. We have no blind eye left to turn.
Lise Thibault slept in the front room, with the window open, so the winter air could slip in and keep her cool. And as she slept, she dreamed. In the distance, outside the field of her sleeping sight, a baby cried. It wasn’t her baby. She knew that, even in her dreams. She was 80 years old then. Her children were grown. They had grown children of their own.
On the baby cried, and Thibault stirred, but she didn’t wake. It was the kind of cry you hear through walls — thin and high and hiccupping. The kind of cry that perks a parent’s ears, no matter how old their children are — the kind of cry you wouldn’t normally hear on a wide, wooded lot in the Quebec countryside, just over the border from Roxham Road.
Thibault opened her eyes and her dream cut short. But the crying didn’t end. It was the middle of the night in late February. Her nearest neighbours were out of earshot. But still the cries carried on. So Thibault rose from her bed. She walked to the window. She looked out into the dark road.
It was late February 2017. Donald Trump had just become president and Justin Trudeau had just told the world, via Twitter, that Canada still welcomed the persecuted and afraid. On Chemin Roxham, where Thibault has lived with her husband since 1968, the border seemed to be fading away. People were walking across — in ones and twos and 10s. They came in families and alone. They walked up a dead-end road in nowhere New York. They crossed a deep ditch and entered Canada, where for a time they became the biggest political story in the country — a lightning rod for debates over border control, loopholes, populism, racism and who is and isn’t a legitimate refugee.
Standing in the snow that night, beneath the amber streetlight, dressed for a different, much warmer world, Thibault saw a young woman holding a baby. A second child, a toddler, stood by her side. “She was so obviously cold,” Thibault said, “and so were the children.” Soon a border control official drove by. He phoned the police, and an officer followed. The mother tried to give him some money, Thibault said, but he refused. Instead, he put the children in the car. “Don’t cry,” he told them. And he drove them all away.
On Wednesday, a federal court judge in Toronto declared that the Safe Third Country Agreement, the border pact that made Roxham Road a thing, violates the Canadian Charter of Rights and Freedoms. The ruling validated decades of arguments made by refugee groups, lawyers and advocates for the displaced and stateless. At the most basic level, it also affirmed what activists on both sides of the border have been saying for almost four years, that the United States, under Donald Trump, is not a safe place for asylum seekers and refugees.
As is often the case with legal rulings of sweeping effect, Wednesday’s judgement actually turned on something quite human and narrow. The case was brought by a coalition of advocacy groups, including the Canadian Council for Refugees and Amnesty International, on behalf of several test plaintiffs. Among those was Nedira Jemal Mustefa, an Ethiopian woman who had lived in the United States since she was 11 years old.
In April 2017, Mustefa tried to cross the border at Saint-Bernard-de-Lacolle, a few kilometres from Roxham Road. After she told border guards she intended to apply for asylum, she was questioned for 30 hours, denied entry then delivered back into the hands of U.S. authorities. She spent the next 30 days in a maximum-security prison in upstate New York sometimes known as “Little Siberia” for its freezing conditions.
For the first seven days in Little Siberia, Mustefa was locked in solitary confinement, an experience she described as “terrifying, isolating and psychologically traumatic.” It was that experience that Federal Court Justice Ann Marie McDonald leaned on in her ruling. The Canadian officials, she wrote, had handed Mustefa over to the U.S. knowing she would be imprisoned, knowing, in other words, that she would be deprived of her fundamental rights under Canadian law.
“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” she wrote. “The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the (Safe Third Country Agreement) or the foundational Conventions upon which it was built. … For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.”
Ironically, had Mustefa tried to cross the Canadian border a few kilometres away, at Roxham Rd., she would have been allowed in, permitted to make her claim and never would have become a test case. That’s what has long driven critics of the Safe Third Country Agreement, on the left and the right, mad.
The deal, hatched in the aftermath of September 11, 2001, was both incredibly broad and extremely porous. With few exceptions, it meant that anyone crossing into Canada from the U.S., by land, was prevented from making a refugee claim. It worked the other way too. The idea was that both Canada and the U.S. were supposed to be safe, and that would-be refugees should be making their claims in whichever “safe” country they arrived in first.
But it never totally worked that way. Critics on the left argued that the United States was not, in fact, safe. Critics on the right, meanwhile, hammered on the fact that the deal only ever applied at official border crossings. For a long time, those arguments weren’t academic. But they weren’t totally mainstream, either. People crossed irregularly. But never in great numbers. When Donald Trump was elected, the levees broke and the floods began.
Beginning almost immediately after Trump’s election, people starting walking over the border in serious numbers. They crossed in the winter, at great peril, into Manitoba and Saskatchewan. They crossed outside Vancouver and near Niagara Falls. But most of them, tens of thousands of them, crossed at Roxham Road, a dead-end street in upstate New York that ended in a tiny ditch in the Canadian woods.
So many of them crossed, so regularly, that Canadian officials eventually filled in a path over the creek so asylum seekers could roll their luggage across. They hauled in trailers and port-o-potties and built a semi-permanent reception centre on the other side of the border. Mounties would stand and sternly warn asylum seekers they’d be arrested if they crossed, then, once they crossed, help them with their bags.
It was a strange and contradictory thing to witness. And it represented, with each crossing, the strange and contradictory nature of asylum policy under Justin Trudeau. He wanted Canada to look welcoming. It was good for the brand. But he didn’t love dealing with what it meant to welcome so many, so fast.
For months, Roxham Road was the biggest story in Canada. It carried on as a political lightning rod for more than a year. And then, the issue just faded away. The traffic at the border never really stopped. People kept on crossing. But Canadians and Canadian politicians mostly stopped talking about it. The Liberals didn’t love getting painted as soft on border security. The Conservatives weren’t fond of getting lumped in with the angry, anti-outsider right. In any case, when the election came last year, Safe Third Country, asylum seekers, and Roxham Road barely made a ripple.
All the while, in the background, lawyers kept working away at the case that ended Wednesday. And that case means that now, whether they like it or not, the Liberals have to deal with the issues underlying Roxham Road. It is patently clear that the United States under Donald Trump is not a safe country for asylum seekers. Indeed, the Trump administration doesn’t want it to be. That’s their border plan: Make things so inhospitable in the U.S. that asylum seekers never even bother to try. That the Liberal government went to court to argue otherwise was absurd. That they lost was something of a surprise.
What happens next though, isn’t clear. Justice McDonald gave the government a six-month grace period before her ruling comes into effect. In six months, the world could be a different place. Joe Biden could be the U.S. president. The conditions for asylum seekers in the U.S. could be different than they are today. The government could amend the law, appeal the ruling or find another way to punt the issue down the road. Until then, in theory, asylum seekers could still get turned away at a border crossing and welcomed at a border ditch. A system that never totally made sense, one that is now officially, legally, in violation of the Charter, could remain in place.
Whatever comes next, the government should be careful. This country has an obligation to treat people who come here, by any route, as human beings. That obligation doesn’t go away just because our closest neighbour has decided it doesn’t apply to them anymore.
