May 2023

Most Canadians will never have to worry about having to flee their home. Though the number of us displaced because of natural disasters such as floods and recent evacuations due to wildfires in Alberta is increasing due to climate change, we are a population safe from civil unrest and war.

From our privileged position, Canada has been a world leader in the private sponsorship of refugees. Recently, Canada welcomed thousands of Ukrainians through the CUAET program. Canada. In response to current situations in Iran and Sudan, exemptions have been made to usual strict policies regarding the issuance of visas and work permits to allow individuals in Canada to remain and (in the case of Sudanese) to join family members in Canada.

However, Canada’s generosity towards those who have fled their homes is not without limit.

On March 24, 2023, Canada and the United States announced the expansion of the Safe Third Country Agreement across the entire land border. The Safe Third Country Agreement between Canada and the United States is part of the U.S.–Canada Smart Border Action Plan. The agreement was first signed in 2004, and since coming into effect in 2002, the agreement did not apply to those who crossed between official points of entry. With the political situation in the USA becoming increasingly inhospitable to refugees, the number of migrants coming to Canada through locations such as Roxham Road was increasing. Despite the strict legal test applied and the difficulties in obtaining sufficient documentary evidence, 52% of these individuals were accepted as refugees. Others would have been accepted under humanitarian and compassionate programs. Having represented many refugee claimants who made their way to Canada from the USA, I am well familiar with the horror stories they bring. Though not the beneficiaries of positive media coverage like Syrians, Afghans or Ukrainians, individuals from countries where women, political dissidents and members of the LGBTQIA+ community are routinely persecuted are no less deserving of protection.

Many of the refugees coming to Canada from the USA had entered with valid visitor visas. Others entered the USA through irregular means and made their way north. However, recently, the USA began barring refugee claims for most who entered the country without valid authorization and beefed up border security as an accompaniment to the new rules.

Without legal means to enter either Canada or the USA, refugees will have no choice but to use increasingly risky methods to find a place of safety.

At least for now.

On October 6, 2020, the Supreme Court of Canada heard oral arguments in a case spearheaded by the Canadian Council for Refugees, Amnesty International, The Canadian Council of Churches, and several individual litigants whose interests were affected by the agreement. The application is an appeal of a Federal Court of Appeal decision that overturned a Federal Court decision that found the agreement violated the Canadian Charter of Rights and Freedoms due to the risk of refoulment from the USA and because of the US’s immigration detention practices.  If the agreement is found unconstitutional by the Supreme Court, refugee claimants would potentially be permitted to make a refugee claim at any of the 119 border crossings.