 |
| Maureen Silcoff |
If you lived in a country where LGBTQ+ rights were non-existent, and you spent each day at risk of harm, would you take a chance and flee to Canada through Roxham Road? It’s no secret that the U.S. asylum system fails some refugees. For example, refugees are routinely jailed, whereas Canada uses detention as a last resort. In addition, refugees with gender-based claims risk having their claims rejected due to a narrow interpretation of refugee law that does not exist in Canada. Some refugees choose to enter Canada as a result.
True, the number of refugees arriving at Roxham Road has increased in 2022. That’s to be expected, given that displaced persons globally have reached an all-time high, currently at 281 million. Canada’s geographic location means that Canada will always welcome only a drop in the global bucket of refugees.
We know that crossing between ports of entry for the purpose of seeking protection is not illegal, either in Canadian or international law.
We also know that entering at Roxham Road is no golden ticket to Canada. Rather, it’s the beginning of a rigorous refugee determination process. The number of accepted refugee claims sits at over 60 per cent whether the person enters Canada at Roxham Road or through official ports of entry. Place of entry says nothing about the merits of a refugee claim.
The recent rhetoric loses sight of a core issue: Canada’s protection of vulnerable, often racialized people. Canada has a long history of protecting refugees who fear harm in their country of origin based on religious or political persecution or gender-based violence. Are we concerned about an Iranian woman who faces death over a peaceful protest only from afar? If she arrives at Roxham Road, do we turn her away?
The Safe Third Country Agreement (STCA) is at the heart of the Roxham Road issue. The STCA funnels people to Roxham Road because the STCA bars refugees from entering Canada at ports of entry but for certain limited exceptions — the most used being that for refugees with family members in Canada.
The STCA does not apply between ports of entry, nor could it realistically do so. A border the size of Canada’s with U.S. cannot be continuously monitored. People will continue to cross the border undetected, and in perilous manners that can result in death.
This is why calls for Ministers Sean Fraser and Marco Mendicino to “modernize” the STCA are misplaced. Even assuming the U.S. is interested in principle, the border cannot be sealed. A realistic plan is needed, not finger-wagging at the federal government.
Article 6 of the STCA permits Canada to unilaterally invoke public policy exemptions to the STCA, expanding the categories of people who can enter at official ports of entry. Public policies are a mainstay of Canada’s immigration system which ministers of citizenship and immigration regularly invoke when flexibility is required to meet the moment.
Canada has one such STCA public policy in place for persons who would face the death penalty in their country of origin. That exemption is rarely used. A second exemption existed for persons who were from a country to which Canada has paused removals. The Conservative government removed that exemption in 2009.
The House of Commons Citizenship and Immigration Committee (CIMM) reviewed the STCA and its draft regulations in 2002 and issued practical recommendations concerning possible Article 6 exemptions, as did the United Nations High Commissioner for Refugees (UNHCR). These are worth revisiting.
Public policy exemptions would ease the pressures at Roxham Road by rerouting refugees who are already arriving in Canada to any official port of entry. Exemptions would disperse people from coast to coast and reduce entry to Canada through Quebec. Cities and provinces throughout Canada could then provide settlement services.
Drawing on the CIMM and UNHCR recommendations, possible categories of public interest exemptions could include persons who are subject to detention upon being turned away at the border, persons with gender-based claims and persons who are subject to the one-year bar on making a refugee claim in the U.S., which does not exist in Canada.
It’s time to rise above the Roxham Road rhetoric through practical measures.
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 past president of the Canadian Association of Refugee Lawyers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call (647) 776-6672.