Prime Minister Justin Trudeau condemned for the first time Wednesday the US government’s zero-tolerance policy towards illegal border-crossers that has seen thousands of children separated from their parents.
“What’s going on in the United States is wrong. I can’t imagine what the families living through this are enduring,” Trudeau told reporters Wednesday morning in Ottawa. “Obviously, this is not the way we do things in Canada.” The criticism represented a rare comment from Trudeau on US President Donald Trump’s domestic policies, and marked a change from his comments earlier in the week when he insisted the government wouldn’t “play politics” on the issue.
On Wednesday afternoon, Trump signed an executive order to end family separation at the border by finding facilities that can hold parents and children together, though the move is unlikely to satisfy those concerned about a hardened stance on asylum seekers under the Trump administration.
While Trudeau had until Wednesday been reluctant to comment on the policy, lawyers and refugee advocates have spent the past days calling on the Liberal government to suspend the Canada-US Safe Third Country Agreement, which allows Canada to turn back asylum seekers trying to enter the country by land from the US. They say the premise of the agreement — that the US is a safe country where asylum seekers are treated in much the same way they would be in Canada — no longer holds water. Still, despite the public outcry and the shift in Trudeau’s tone Wednesday, the federal government seems in no mood to scrap the 14-year-old agreement, which was designed to help both countries control the flow of migrants.
“We take action based on facts and not based on fears or worries,” Trudeau told reporters Wednesday. On Monday, he said the United Nations has determined that the US remains a safe third country for asylum seekers, likely referring to a February assessment from a representative of the United Nations refugee agency.
Calls for the Safe Third Country Agreement to be scrapped have been around for about as long as the agreement itself. But it persists, having even survived a court challenge in 2008. Even among those arguing that the US has become less safe for asylum seekers under the Trump administration, some concede the Canadian government has little incentive to suspend an agreement that helps control the number of migrants knocking on Canada’s door.
“The entire motivation for this agreement was Canada’s desire to reduce its numbers of asylum seekers,” said Audrey Macklin, a law professor and chair in human rights law at the University of Toronto. “That’s why this agreement exists.”
Enacted in 2004, the Safe Third Country Agreement requires would-be refugees to claim asylum in the first country in which they arrive, either Canada or the US, meaning Canada can turn back most asylum seekers arriving by land.
Macklin said the agreement was signed in the wake of the Sept. 11 terrorist attacks, when the US insisted on tightening border controls. “In that post-9/11 period, the United States effectively threw Canada a bone and said ‘Okay, you can have this agreement,’” she said.
Macklin was one of more than 200 law professors who signed a letter last year calling on the federal government to suspend the agreement in the wake of Trump’s travel ban targeting certain Muslim-majority countries. Now, she believes the zero-tolerance policy dictating that anyone who crosses the border illegally should face criminal prosecution runs counter to Canadian and international refugee law. She also pointed to Attorney General Jeff Sessions’ decision last week to overturn asylum protections for victims of domestic abuse and gang violence.
Still, she acknowledged Ottawa has little incentive to suspend the agreement in response. “I think really the government is probably unlikely to do much,” she said.
On Tuesday, Immigration Minister Ahmed Hussen said Canada will “continue to monitor” any changes to the US asylum system, but said the Safe Third Country Agreement “has actually been a very good agreement for Canada.”
That has not satisfied the federal NDP, who are demanding action. “The suspension of that agreement is actually a very concrete step we can take, which shows that we’re doing our part,” NDP leader Jagmeet Singh told reporters Wednesday. “If we stand by silent, if we don’t take action, we’re complicit.”
But Conservative immigration critic Michelle Rempel, who has called on the government to take a tougher stance on asylum seekers entering Canada, took a more muted position. “As the opposition shadow minister, when the prime minister of the country comes out and says we maintain that the US is a safe country, we have to assume it’s because he’s utilizing (objective) criteria,” she told reporters.
Though the Safe Third Country Agreement is based on the notion that both countries treat asylum seekers in similar ways, Canadian and U.S. asylum policies have never completely aligned. For one thing, most would-be refugees in the US are barred from receiving asylum if they fail to make a claim within their first year in the country, said Toronto immigration lawyer Michael Battista, a policy that doesn’t exist in Canada.
Moreover, the US only recognized domestic violence as legitimate grounds for asylum under the Obama administration in 2009, five years after the Safe Third Country Agreement took effect, whereas Canada recognized gender-based persecution claims in 1993.
Refugee advocates have long cited these differences and others as reasons the Safe Third Country Agreement should be scrapped. In 2007, the Federal Court actually struck down the agreement, finding that the US could not be considered a safe third country. But the ruling was overturned in 2008 by the Federal Court of Appeal, which found the lower court had no authority to rule on “wide swaths of US policy and practice.”
Still, the fundamental attitude toward asylum seekers has shifted under the Trump administration, said Lloyd Axworthy, chair of the World Refugee Council and foreign affairs minister under former prime minister Jean Chrétien. He said the Safe Third Country Agreement was a “workable arrangement” when it was first signed, because both countries agreed on the basic principle that people have a right of asylum. He believes that’s now changed, and Canada needs to disassociate itself from Washington’s “draconian measures.”
Last July, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches launched a new legal challenge of the Safe Third Country Agreement, centred on a Salvadoran woman who fled her home country due to gang violence. A hearing is scheduled for January 2019.
But for now, there’s no clear consensus on how much of a gap between Canadian and U.S. asylum systems is too much. Asked on Monday whether Canadians can still consider the US a safe third country, Transport Minister Marc Garneau said “Of course we can.”
Toronto immigration lawyer Matthew Jeffery disagrees. “If we are going to call ourselves a true humanitarian society… then the time comes when we have to realize that the law has to prevail over convenience,” he said. “I think when you’re rounding up little children and putting them in tent camps in the desert, we’ve reached that point.”