Dismantling the Safe Third Country Agreement

Last week brought great news for refugee advocates and activists in Canada. The Federal Court of Canada declared that the operation of the Safe Third Country Agreement ("the agreement") between Canada and the United States was unconstitutional and contrary to the Charter of Rights and Freedoms. The court thus effectively placed the agreement, which has been the centre of controversy for several years, "on hold."

The Safe Third Country Agreement, signed between Canada and the US in 2002, allowed border officials from each country to refuse entry to individuals entering from Canada or the US seeking to make a refugee claim. This refusal is based on the assumption that the claimants were already in a safe country. When the agreement was implemented in December 2004, it caused immediate havoc at the border when refugees in the US, fearing their status and panicking at the deadline, rushed to Canadian border crossings, but were turned back because the agreement had already been implemented.

Hot on the heels of the events of September 11, 2001, political support for the agreement was high. This support was bolstered by the incorrect characterization of Canada’s refugee system as dysfunctional and lax in curbing the flow of terrorists into Canada. Also, refugee claims at Canada’s Immigration and Refugee Board were significantly backlogged – and many of these claimants had come through the US. Reducing the number of claims presented the government with one way to manage the numbers. The results of the agreement were obvious: refugee claims in Canada fell sharply from around 37,000 cases per year to about 25,000.

In response to the implementation of the agreement, the Canadian Council for Refugees, Canadian Council for Churches, Amnesty International and John Doe, an unnamed Colombian refugee in the US, mounted a legal challenge. John Doe’s refugee claim was rejected in the US because it wasn’t made within his first year of arrival, despite evidence that he would face harm if he returned to Colombia. And because of the agreement, John Doe couldn’t make a claim in Canada since he had come through the US. As a result, the court challenge argued that it is not reasonably possible to determine the US is a safe place for refugees. Justice Phelan agreed, ruling it is wrong to turn refugees away on the basis of the agreement.

To casual observers, the decision by the courts may seem confusing. Why is the US considered an "unsafe" country for refugees? How would Canada differ? The US is one of the largest resettlement countries for refugees, but these people are carefully selected and brought to the country. Those who enter the US before making a claim are not always so welcomed, including individuals from Islamic countries, abused women and those claiming asylum based on sexual orientation. These processes and results are distinctly different from Canada’s refugee determination system.

An additional concern presented by the court challenge was the impact of US counterterrorism policies on many newcomers, especially refugees. Too often, they are placed in extremely vulnerable and dangerous positions as a result of how terrorism is defined and how policies are enforced. The United Nations Convention regarding the Status of Refugees and the Convention against Torture have very specific clauses safeguarding the rights of those needing protection. One principle states that no one can be returned to a place where they may be tortured or persecuted. The recent case of Maher Arar, a Canadian citizen of Middle Eastern origin who was arrested in the US, deported to Syria merely on suspicion of having links with terrorists and tortured in Syria, directly went against this principle.

In the wake of September 11, the agreement was seen as increasing border security by preventing terrorists from entering through the refugee system. But anecdotal evidence suggests that terrorists don’t use the refugee system because it is too rigorous, so neither country is safer now than it was before the agreement.

In Canada, the agreement was primarily used as a means of reducing the number of refugee claims and closing the border to many refugees. However, shutting the door is neither a viable nor a sustainable response to the real problem of forced displacement. The numbers of those seeking refuge globally will not decrease because we reduce access to our country. All it does is to transfer the stress elsewhere and cause a disproportionate and inequitable burden to other nations that don’t have the necessary physical and social infrastructure to respond to such humanitarian need.

Building on the federal court’s recent decision, Canada can adopt a proactive stance in two areas to find lasting solutions for refugees. First, it can provide leadership on the global stage by addressing the root causes of forced displacement of people. Poverty, unfair trade practices, inequitable distribution of wealth and resources, irreversible ecological damage, environmental pollution and a host of other factors need to be named and systematically dealt with over the long term.

Secondly, Canada can share its bountiful wealth and resources with those less fortunate by opening its borders and ports of entry to those who need protection. At the same time, Canada could have an effective and efficient system within the country to address those who do not qualify in an expedient and humanitarian manner.

Through these actions, Canada could make a significant contribution to solving the effects of a problem that will not go away, while also creating a truly safe refuge for those in need.