CIL has been providing commentary of issues to the Safe Third Country Agreement (STCA) for many years. We have assisted many refugee claimants who have crossed from the USA into Canada at POEs (Ports of Entry) and we have also represented many individuals who have crossed between POEs, at “irregular” entry points. The most famous irregular point of entry has become Roxham Road in Quebec. Many of our clients have traveled through the USA to Roxham Road and then, once they have started their refugee claim, they travel from Quebec to Manitoba. It is a long and arduous journey.
For background, Alastair Clarke has given numerous interviews and presentations on the STCA and the issues with this agreement. In 2017, he spoke at the Strangers in New Homelands Conference in Winnipeg and the panel, including lawyers and academics, provided insight on these issues. In 2018, he provided insight to CBC News on irregular entries and how individuals with “anchor relatives” can make their claim directly at the POE. He has also given presentations to various groups, including at the CBA National Immigration conference in 2017.
On Friday, the Trudeau government announced amendments to the STCA. Those changes became effective the next day, causing havoc and uncertainty for individuals who are trying to find safety in Canada.
In my legal opinion, the changes to the STCA are problematic for 4 main reasons:
- It is highly probable that refugee claimants will go into hiding during the 14 day period so they can make their claim from within Canada. Most of these individuals have already spent significant time in their journey to Canada. That extra 14-day period will not be a significant deterrent.
- The communities along the border are going to be our new front line. Refugee claimants will now to be forced to cross at irregular entry points which are far more dangerous than at Roxham Road. Border communities are going to have to make decisions on whether to provide protection or sanctuary for these individuals.
- These amendments are going to give Canadian Officers more work. If the claimant is captured during the 14-day period, the Officer may then facilitate removal back to the USA. How are the Officers going to establish the claimant is within that 14-day period? If they are crossing irregularly, they will not have documents showing the date they entered Canada. This 14-day period is extremely problematic for many reasons.
- The government has completely ignored the section 7 & section 15 Charter arguments. The Federal Court ruled the STCA was in violation of the Charter. That decision was overturned by the FCA. Oral arguments to the Supreme Court of Canada were heard in Oct 2022 and we are waiting for a final decision. These recent amendments completely ignore the constitutional issues raised by the Court. It is not clear why the government could not have waited for the SCC to render its final decision before these amendments. I have published my comments on the Charter issues.
Recently, Alastair Clarke was invited to Toronto to give a presentation on border issues at TMU. This presentation was, of course, prior to the recent announcement and, therefore, we did not cover the points outlined above.
If you have questions related to the SCTA, please contact our office. We will provide as much guidance as possible.