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Asylum seekers cross into Canada from the US border near a checkpoint on Roxham Road near Hemmingford, Quebec.

REUTERS/Christinne Muschi

Canada’s top court says US safe for refugees – more or less

The Supreme Court of Canada has ruled that the Safe Third Country Agreement, which governs refugee migration between Canada and the United States, is constitutional. Refugee groups had said the US was not a “safe” country and that returning refugees who fled north violated the Canadian Charter’s Section 7 guarantee of “life, liberty, and personal security.” The court said otherwise.

The decision follows the March deal struck between Canada and the US to close the irregular border crossings not covered by the 2002 agreement. Refugee migration experts warned the amendment would make life more dangerous for refugees, and eight migrants died soon after while trying to cross the St. Lawrence River to reach the US from Canada. Data from the US Customs and Border Protection before and after the March deal show an initial downturn in migrant encounters after the deal but an increase in May. Canadian data is pending, but Ottawa has acknowledged that the amendment will be tough to enforce and that the use of clandestine irregular routes could raise the risks of human trafficking and sexual violence while putting children and elderly migrants at greater risk.

In the court’s decision, Justice Nicholas Kasirer wrote that legislative “safety valves” guard against “real and not speculative risks of refoulement from the United States.” The court also noted that while some of the concerns cited by advocates were legitimate, such as poor holding conditions, migrants had access to “curative measures” like resident permits and humanitarian and compassionate exemptions.

So the STCA passed one hurdle … but the court also sent the case back down to the Federal court for review on the grounds of a possible Section 15 violation of the Charter. Section 15 covers equality under the law and protects from “discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.” Advocates argue migrant rights are being violated based on sex and religion, with the US providing inadequate protections and accommodations for either.

While some want the STCA scrapped, both Washington and Ottawa prefer to keep it in place. Both Joe Biden and Justin Trudeau are facing elections in 2024 and 2025 in which immigration will be center stage. Biden needs to limit the porousness of the northern border, and Trudeau needs to reduce irregular migration via Quebec, a province with huge political sway.

Whether the new STCA deal holds, however, is up to the courts, where round two on its constitutionality is about to get underway.

CBP Border Patrol agent during a news conference announcing the completion of border wall prototypes in San Diego.


ACLU demands data on irregular border crossings

The New Hampshire American Civil Liberties Union is suing Customs and Border Protection for access to apprehension and encounters data along the New York, Vermont, and New Hampshire borders with Canada. In February, CPB claimed there was an 846% jump between October 2022 and the end of January 2023. Now the ACLU is asking CPB to prove it with hard data – which the latter is disinclined to do. The border agency says it “does not release enforcement statistics and/or enforcement data at less than a Sector or Field Office level.” Whether CPB can keep this data private remains to be seen – that will be up to the courts.

In March, as President Joe Biden visited Ottawa, Canada and the US struck a deal on closing a common irregular border crossing and amending the decades-old Safe Third Country Agreement. The deal was short on details and long on promises, and experts said it posed a risk to migrant safety. In May, Canada’s Border Services Agency said the deal was working, claiming irregular migration had fallen “significantly.”

The March deal was premised on increased irregular migration between the two countries. That deal is done, and the ACLU suit won’t change it, but it isn’t the only border policy change being sought based on agency claims. In New Hampshire, for example, Gov. Chris Sununu is pressing for a tighter, more expensive border patrol to address irregular crossings from Canada into his state. That measure is currently being considered by the state Senate.

While governments like to claim they make policy based on hard facts, the ACLU thinks that evidence should be made public, especially when it comes to an issue as sensitive and significant as migration. This isn’t the ACLU’s first border policy-related pushback. In fact, last week, CPB settled a 2020 lawsuit with ACLU chapters over border patrol checkpoints on Interstate 93 in Woodstock, NH, near the US-Canada border. Use of the checkpoints has now been suspended.

Asylum-seekers board a bus after crossing into Canada from the US in Champlain, New York.

REUTERS/Christinne Muschi

What We’re Watching: Border clampdown, Haiti’s hellish choices

Crackdown at Roxham Road

While the great and the good were celebrating the progressive partnership between Joe Biden and Justin Trudeau at a glamorous Ottawa state dinner with yellowfin tuna and Alberta beef, Mounties were shutting down the irregular border crossing at Roxham Road, south of Montreal.

This delighted Quebec Premier François Legault but came as a shock to the desperate migrants who were en route to the crossing when the news broke. The sad and difficult stories of desperate migrants — fleeing war, crime, poverty, and repression — were not shared at the dinner where Canadians feted Biden. The quid pro quo for Biden’s help was a Canadian agreement to accept 15,000 migrants from the Caribbean and Central America.

Yet, closing the irregular border crossing at Roxham Road will likely have a negligible impact. Even if the move initially slows the influx, smugglers will find other routes — which could be more perilous. In fact, eight migrants died late last week in an attempt to cross the St. Lawrence River from Canada to the US.

One striking thing about the announcement was that nobody got wind of it until the day before. The governments had reached a deal in the spring of 2022 but succeeded in keeping it quiet until the last minute, apparently out of a desire to make sure migrants didn’t make a rush for the border.

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