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Time to say goodbye to refugee bogeyman

Friday, August 07, 2020 @ 8:21 AM | By Maureen Silcoff


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Maureen Silcoff
Driven by the politics of fear and division, it’s undeniable that Trump’s America is unsafe for refugees.

We are all too familiar with the unconscionable treatment of asylum seekers at the southern U.S. border, evidenced by the images of children in cages. Now Canada’s Federal Court has spotlighted the treatment of refugees at the northern border, finding that it violates the Canadian Charter of Rights and Freedoms.

In Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship) 2020 FC 770, the court determined that the bar on asylum seekers entering Canada based on the Canada-U.S. Safe Third Country Agreement (STCA) is unconstitutional. The STCA is an agreement between the two countries to share the responsibility for refugee determination, premised on both countries being safe for asylum seekers. When asylum seekers arrive at the Canadian border, save for a few exceptions, they are turned back to the U.S., based on the understanding that the U.S. can properly assess their refugee protection needs.

The court rejected the veracity of that premise. It found that Canada plays a crucial role in sealing people’s fate when it hands them over to U.S. officials. Those officials imprison people, sometimes under deplorable conditions including solitary confinement, lack of proper food, and unbearably cold temperatures. The court accepted that Canada causes people to be imprisoned, which engages s. 7 of the Charter, and that the principles of fundamental justice are breached because people are jailed, suffer trauma and are at risk of refoulement — being returned to their country of origin without a proper risk assessment.  

The court suspended the declaration of invalidity regarding the STCA for six months. Given the seriousness of the harm, and the U.S. no longer being a trusted partner in refugee determination, the government must immediately suspend the declaration now, and not appeal the decision. The harm to people who arrive here and are bounced back to the U.S. is just too serious to wait.

What about the impact of this suspension on the border?

The termination of the STCA impacts the way people cross into Canada. Some people enter Canada through the Roxham Road crossing at the New York-Quebec border, because the STCA bars entry at official ports of entry, but others cross the border through fields and rivers, under dangerous conditions. Recall the people who suffered serious physical harm due to frostbite.

In addition, crossing the border at official ports of entry will be more orderly than under the STCA, which created a spectacle at Roxham Road, and led to mistrust among Canadians. People will simply arrive at the ports of entry and be processed.

There is of course, no automatic right to remain in Canada upon arrival at the border, and that won’t change with the end of the STCA. People are screened upon entry for criminality and security risks. The Immigration and Refugee Board then assesses their protection needs, scrutinizing their evidence to determine whether they meet the legal definition in the Immigration and Protection Act of a “convention refugee” or of a person in need of protection. This process would remain in place despite the end of the STCA.

Notably, the court found insufficient evidence that the STCA must be kept in place in order to avoid an increase in arrivals at the border and sustain the refugee system. Justice Ann McDonald determined that “Canada has demonstrated flexibility to adjust to fluctuations in refugee numbers in response to needs.”

We also can’t ignore the pandemic. Global travel, including the issuance of visas without which people can’t even board a plane, has virtually ended for the foreseeable future, giving the government time to reorganize the ports of entry to accommodate people who arrive.

The Federal Court decision coincides with a proposed regulation by the Trump administration that heightens the risk to asylum seekers and makes it even more clear that the STCA indefensible. The regulation would effectively decimate what’s left of the U.S. asylum system. The United Nations High Commissioner for Refugees (UNHCR) recently warned that these changes, in addition to recent asylum limitations, “would mean that many people fleeing persecution would be unable to request, or obtain, protection in the United States.”

Without an objective, factual basis upon which to justify the STCA, we can’t maintain it. All we’re left with to substantiate the STCA is fear of refugees. Deciding who enters Canada based simply on fear hasn’t worked in the past. We’ve been haunted by laws that excluded people, and we’ve apologized to the communities harmed by those laws.

So, do we perpetuate the STCA based on a fear of the refugee bogeyman? Or do we rise above Trump’s America and take our place on the world stage as a leader in human rights? It’s time to choose.

Maureen Silcoff is a partner at Silcoff Shacter in Toronto and practises in the areas of refugee and immigration law. She was a member of the Immigration and Refugee Board for five years and is the president of the Canadian Association of Refugee Lawyers.

Photo credit / Anna Semenchenko ISTOCKPHOTO.COM

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