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Comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole

September 19, 2021

Comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole

CTV National News recently invited A&T’s Lev Abramovich to briefly comment on certain immigration and refugee statements made by Federal Conservative Party Leader, Mr. Erin O’Toole.

On September 13, 2021, Mr. O’Toole, released a French-language video via Twitter promising to put a stop to “illegal” border crossings of asylum seekers at Roxham Road in Southern Quebec. In the video, Mr. O’Toole states that the Liberal Government has allowed thousands of people to cross the border illegally and created a system that is unjust for “regular immigrants” that follow rules and wait their turn.

>> Watch the video fragment of our comments on Twitter. <<

On CTV’s Truth Tracker with Richard Madan, Lev Abramovich fact-checked Mr. O’Toole’s statements. In this blog, I will provide more detailed analysis on what is happening at Roxham Road, and why Mr. O’Toole’s statements are both false and misleading.

  1. What is happening at Roxham Road?

In recent years, thousands of asylum seekers have entered Canada through an unofficial land crossing located at Roxham Road – a crossing point located between New York and Quebec. Most of the migrants crossing at Roxham Road were either previously residing in the United States or they were travelling through the United States in order to arrive to seek asylum in Canada.

To understand what is happening at Roxham Road from a legal perspective, it is necessary to understand the legal framework governing the matter at hand.

Canada and the United States are both signatories to the 1951 Convention relating to the Status of Refugees (the “1951 Refugee Convention”) – the cornerstone of international refugee law. As signatories of the Convention, both countries are amongst other things legally obligated:

  • to not obstruct entry to those individuals who arrive at their borders and seek protection; and
  • to ensure such individuals have their cases freely and fairly heard.

The other important piece of legislation governing this matter is the Safe Third Country Agreement – a bilateral agreement signed by the United Stated and Canada in December 2014 designed to “share” the respective countries duties under the UN Convention and to prevent “asylum shopping.” Under the Safe Third Country Agreement, Canada and the United States recognize each other as safe places to seek protection, which means the Safe Third Country Agreement requires asylum seekers to seek protection in the first safe country they land (unless they meet a set of certain exemptions[1]). However, the Safe Third Country Agreement applies and is only enforced at “ports of entry” which means Canada can turn back refugee claimants who arrive at the official ports of entry, on the basis the basis of them first arriving in the United States which is why asylum seekers often cross into Canada without going through an official port of entry.

There has been heated debate about the Safe Third Country Agreement with some taking the position that it should have never been entered into in the first place, while others defend the agreement and argue it should apply to both regular and irregular crossings.

The constitutionality of the Safe Third Country Agreement has been challenged in Federal Court since its introduction with the Safe Third Country Agreement being struck down on two occasions by the Federal Court only for the decisions to be overturned by the Federal Court of Appeal.

The latest installment of Safe Third Country Agreement litigation took place in 2020-21. In July 2020 Canada’s Federal Court ruled that the Safe Third Country Agreement violated the Canadian Charter of Rights and Freedoms as it exposed asylum seekers to “physical and psychological suffering” in unsafe detention facilities across the United States. The federal government appealed the judgment, and on April 15, 2021, the Federal Court of Appeal ruled in the government’s favour and upheld the constitutionality of the Safe Third Country Agreement.

  1. Analysis of Mr. O’Toole’s Statements

The 1951 Refugee Convention recognizes the fact that those fleeing persecution may use irregular or even illegal means (such as false identity documents) and states that refugee claimants are not to be penalized for doing so.

To protect Canada’s border security, while at the same time fulfilling Canada’s obligations under the 1951 Refugee Convention, Canada Border Services Agency (“CBSA”) created an in-take center at Roxham Road in Quebec, Canada to facilitate refugee claims made pursuant to irregular crossings, balancing Canada’s obligations under the 1951 Refugee Convention with the need to protect the integrity of our borders.

Given Canada’s obligations under the 1951 Convention, the crossings addressed by Mr. O’toole cannot be considered illegal as the individuals in question are crossing for the purposes of seeking refugee protection and present themselves to CBSA.

In addition, Mr. O’Toole erroneously conflates regular economic or family immigration streams with claims for protection. While Immigration Refugees Citizenship Canada (“IRCC”) is in fact dealing with significant backlogs across various temporary and permanent immigration steams, the refugee protection determination process is entirely separate and distinct. Refugee claims are considered by the Refugee Protection Division of the Immigration and Refugee Board as opposed to IRCC and the individuals presenting themselves to CBSA at Roxham Road are therefore not “jumping” any lines.

Moreover, upon entry into Canada (whether at Roxham Road or at regular Port of Entry), asylum seekers are screened for admissibility, and their cases are only referred to the refugee protection division if they qualify for consideration. If their case is referred, they are subject to a rigorous refugee determination process which includes a hearing to test the credibility of their claim. They are only granted protection if they meet the definition of a refugee under section 96 of Immigration and Refugee Protection Act (“IRPA”), or a person in need of protection under section 97 of IRPA. If a claim is denied, the asylum seeker has limited appeals rights with the CBSA, and the CBSA acts swiftly in removing failed asylum seekers from the country.

Mr. O’Toole’s statements with respect to the crossing being “illegal” as well as equating refugee claimants to economic or family class applicants are therefore false. In my view, Mr. O’Toole’s statements as well as his position with respect to Roxham Road and the Safe Third Country Agreement take away from an otherwise rather ambitious and comprehensive immigration platform presented by the Federal Conservatives.

The opinions expressed herein are solely those of the author and are not meant to express support for a political party or agenda.

[1]https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada/processing-claims-protection-safe-third-country-agreement.html