Danielle Smith: All right, I am prepared to have my mind changed on this one. My inclination is that the Safe Third Country Agreement is a good agreement; and that we are absolutely right when somebody arrives at our borders saying that they are from America, that they should be applying for refugee status in the United States first. My inclination is that genuine refugees fleeing hazardous conditions in war torn areas are going to have an equally fair process in the United States and Canada.
Danielle Smith: My sense of it though is that there is this push on for economic migrants regardless of your reason of wanting to move to a different place, you should be accepted and there shouldn't be any additional process that you need to go through. I think that's problematic because we have an entire system on immigration that is built around identifying people who are going to be the best match for our particular economic circumstances. And the point system and giving precedence to those who can speak one of the two official languages so that they have an easier time into integrating into our economy. It's actually a pretty darn good system that we have.
Danielle Smith: And if we take the view that we're going to eliminate the Safe Third Country Agreement and we're also going to eliminate any sort of checks on whether or not somebody comes in on the basis of what our refugee program allows, it is going to be open season, then we're going to have a hard time managing our borders. I'm just putting that out there. Especially as the Americans are moving more towards identifying those who have entered the country for economic reasons, who don't have legitimate claims, there's hundreds of thousands, maybe millions. Do you really think that we'd be able to handle hundreds of thousands of people coming across the border? Especially since we seem to not be able to manage the 53,000 coming across at Roxham Road. So I know these are complicated issues to discuss, but we really need to have a policy that I, and the other part too, people say, well it's a big country.
Danielle Smith: Yes. But when somebody comes here and needs the support of services, you have to have a taxpaying base, a tax paying base that is able to support those who will rely on government for a period of time. And one of the reasons we have so much tension now in Quebec is because most of the people who've been coming across Roxham Road has stayed there and it puts additional costs on the provincial government and the municipal government and the federal government doesn't want to pay for it.
Danielle Smith: So we are going to see whether or not, that's a lot to discuss in this segment. I understand that, but maybe it is the case that this legal challenge that is going through, will make the point that legitimate refugees don't get a fair shake in the US and if we want to be compassionate that we've got to ditch that agreement and do our own process. I'm going to see what Raj Sharma has to say about it. He's my go to. Every time I want to find out about how the immigration and refugee system is working. He's a Calgary immigration lawyer and he joins me now to go through this. Raj, thanks so much for being with me again.
Raj Sharma: Good morning Danielle.
Danielle Smith: So let's, you should maybe start by telling us what the Safe Third Country Agreement is, just so in case I am misunderstanding how it's supposed to work.
Raj Sharma: Sure. The Safe Third Country Agreement or STC for short, it's an agreement that essentially limits forum shopping. It's something that we wanted. And so it was under the liberal government back in 2004 so this was the aftermath of 2001 the US was moving decisively, shall we say, aggressively on immigration reform and Canadians and bureaucrats and politicians are well aware of the possibility of tens of thousands of people trying to seek to enter Canada and make a claim at a land port of entry. And so it was something that we wanted and the Americans allowed us to have it so that's the Safe Third Country group. And now the Safe Third Country Agreement, it's interesting because on its face it seems limit forum shopping, but the Safe Third Country Agreement never applied to people that, for example, flew in to Canada.
Raj Sharma: So if you were to fly into Canada and make a claim inside Canada, it doesn't matter that you were in the US prior to that. And it didn't apply to people that snuck across the border, for example. And it didn't apply to people that had family members in Canada. So that was the Safe Third Country Agreement. And it seemed to have perhaps work to some degree, although we did have some tens of thousands of, we did have a surge of border claims or claims at the border after 2001.
Danielle Smith: Was that an oversight or was it by design that you would've thought that it should apply to any of the ways that people might come into Canada?
Raj Sharma: I'm not sure what they were thinking. Perhaps it was sufficient. Perhaps they wanted to maintain, for example, inland claims or perhaps it was just too difficult to implement. Certainly I imagined that it would be relatively easy to determine whether someone transited over the last country prior to Canada was the United States.
Danielle Smith: Okay. Let's then talk about the difference in processing refugees. If we have vastly different standards about what somebody, what circumstances a person needs to be in to qualify for a refugee claim, then maybe there's some argument to be made that the Safe Third Country Agreement has outlived its usefulness. But is that the case? Is it a vastly different set of criteria?
Raj Sharma: Both Canada and the US are signatories to the Refugee Convention, so the Refugee Convention was brought in after World War II. Obviously millions of Jews, other minorities of course, were killed. There were individuals that were returned to the line of fire, so to speak, and so the signatories to the convention and the US and Canada are of course both signatories to the convention. We have analogous determination systems with respect to the classic definition of what a refugee is.
Raj Sharma: So in our law, that's section 96 so a person that's outside their country of nationality that fears persecution, a well founded fear of persecution due to one of the convention grounds, race, religion, ethnicity, political opinion. And so the US and Canada are on the same page, so to speak there. What's different is that Canada has section 97 where we grant protection to persons in need of protection. So for example, we could very well grant protection to a domestic violence survivor from central America. The US will not. And the former attorney general made that clear as well. So that was a significant, significant change. So again, we would grant gender based violence Canada recognizes and the United States unfortunately does not.
Danielle Smith: Okay. So is that reason enough to throw the entire agreement out? Of the potentially hundreds of thousands of people in America that are going to be asked to leave the country, how many of them would be victims of domestic violence?
Raj Sharma: Well, and that's the thing. So the Safe Third Country Agreement was challenged at the federal court some 10 years ago, around 2007, 2008. At the federal court level, the court agreed that the US was not a Safe Third Country and then on appeal it was overturned because of the federal court of appeal said that you can't make these decisions without a factual sort of matrix. They didn't actually have an actual case. It was all theoretical.
Raj Sharma: You now have those actual cases and that they're bringing forward. So you have the Honduran woman that is a survivor of gender based violence and sought protection in Canada and was found ineligible because of the Safe Third Country Agreement. So you have that actual live factual matrix and now you have a foundation for that attack. That is probably one of the sort of prongs of attack. The other prong of attack could be the change let's say in policy, the detention of minors, the treatment of migrants on the US Southern border. So I believe that these are the two sort of main, the foundation for the challenge to the US as being a quote unquote safe country.
Danielle Smith: Okay. So let's deal with the first one. Couldn't you develop a separate stream saying Safe Third Country applies except for in this circumstance, if you cannot seek asylum in the US because of domestic violence, we will consider your claim. Isn't there a way to make a modification to this so that you can bring it into parody without throwing the whole thing out?
Raj Sharma: Perhaps. But again, the US is again, they've gone off on their own sort of frolic of their own, shall we say. So you now have the US pressuring Central American countries to be Safe Third Countries. So you have the US now saying, you have to make a claim in Mexico and if you haven't made a claim in Mexico, Mexico is offensively a Safe Third Country or any country on the way there. So I think it's the US that's throwing the baby out with the bath water. And it will be difficult for Canada now to put this back together again at a certain point Humpty Dumpty has fallen. It's going to be tough to put this back together.
Danielle Smith: Well, let's then talk about the consequences of not having the Safe Third Country Agreement because the Americans really, the fact that we've got this huge landmass on our Southern border has been part of the reason we've not seen a massive influx of new arrivals to Canada in the same way that we've seen mass movements of people in the US at their Southern border or even in Europe. And so what are the consequences of eliminating that agreement?
Raj Sharma: It's tough to say. I mean, on the one hand, one could point out that if you don't even have the facade of the Safe Third Country Agreement, will it make it so that people will simply go to the port of entry and make a claim? I'm not sure. There's a number of reasons why living in the US is more attractive than coming to Canada making claim here. And in fact, living illegally in the US might be more attractive to some people than coming to Canada and making a claim here. So for example, Mexicans don't need a visa to come to Canada, so the US are advising that Mexicans are flying into Canada and then crossing the border illegally to get to the US. So again, there's cultural reasons, community reasons, family reunification reasons. So there may be a number of, I think there's probably thousands of people that are probably hunkered down and probably awaiting the change in policy, a change in administration. I'm not sure whether there's going to be, you know, whether the floodgates are going to open.
Danielle Smith: Well, what about the other nations? Because in some way, I mean, Mexico, it seems to be developing a growing middle class and conditions are improving. Obviously there's still issues of crime, but it's night and day difference going there now than it may have been 20 years ago. And that may explain some of that proximity that they'd want to keep by staying in the US but isn't increasingly Mexico becoming a conduit for migrants from Honduras and El Salvador and Nicaragua and does that still hold, I mean, is there cultural reasons why they would not look at Canada as an option or do you then risk having hundreds of thousands of people looking at Canada as an option if the Americans crackdown?
Raj Sharma: Again, it's difficult to say because I think it's a bit of a mug's game to try and predict what the Trump administration will do next. There are a quarter of a million Salvadorans in the United States at present and they've been there for a long time. That being said, there's hundreds of thousands of Venezuelans, perhaps millions of Venezuelans that have been displaced, most of them, the vast majority are, have been taken in by their South American neighbors and they're able to work and live there and have some sort of temporary solution to that mess that's going on right now. It's difficult to predict the future, especially in in 2019.
Danielle Smith: Okay. The other side, and we've talked about this before, is that many of the people coming across at Roxham Road aren't American, aren't from Honduras, Mexico, El Salvador, Nicaragua. They've been coming in from Nigeria and so what would the ending of the Safe Third Country Agreement do to that group of migrants?
Raj Sharma: Nothing. They're already circumventing the Safe Third Country Agreement by by going to Roxham Road, so it won't impact them at all. Again, let's say you have about 50,000 border crossers in the last two years. You have to expeditiously deal with those claims. The board seems to be bringing on board those efficiencies. Now, that being said, only 850 individuals that have had their claims refused have been removed from Canada in the last two years. Obviously there's an issue in capacity I suppose.
Danielle Smith: Raj, let me pause you for a minute because I want to talk about this other aspect because I'm sure that there are people who might agree that what's wrong with the UN migration pact was wrong with allowing anybody who wants to come here for any reason? Just being allowed to enter Canada through whichever means that they choose whether or not they're a refugee. And I just want to understand a little bit more about what you think our capacity is to offer that kind of sanctuary to the world. Raj Sharma is my guest. He's a Calgary immigration lawyer. We're talking about this legal challenge, which if I'm reading Raj right, sounds like it might be successful, we might end up seeing an end to the Safe Third Country Agreement. Stay with us. We'll be right back on Corus Radio.
Danielle Smith: All right. One of our listeners says, Michelle Rempel has been demanding for years now that the government close the loophole in the Safe Third Country Agreement by making the whole border an official crossing. From what I can tell that would be by far the best solution that comes from Roxham. And another person says, Danielle, your opinion seems very reasonable and well thought out. Unfortunately the left will only hear it as racism and bigotry. Look guys, I think that we have to be realistic about what has caused the backlash in Quebec and the fact that they've come through with this secular ban and the fact that they are demanding money from the federal government is because they've mismanaged the crossing at Roxham Road. And so I look at the other way. I'm very much in alignment with Michelle Rempel on this. If you don't deal with those kinds of pressure points properly, then it erodes public confidence in the entire immigration system.
Danielle Smith: So that's why I think we need to pay attention to what's happening with the Safe Third Country Agreement. Because if we end up seeing a massive opening of the border as a result and large numbers of people coming across at all places, I think that we're going to end up with a similar backlash. We just have to be prepared for it. And so now we need to figure out what's the solution here. Raj Sharma is a Calgary immigration lawyer. We're going to talk through this. What about Michelle Rempel's idea of making the entire border an official border crossing? Is the reason that hasn't been done because the Americans would have to agree to that and they don't want to talk about it?
Raj Sharma: That's correct. And so again, during the selection, you had various disingenuous statements made by politicians. You had Jagmeet Singh saying thumping his chest and saying that he would stand up to Donald Trump. You had Andrew Scheer somehow postulating closing down and or, extending the Safe Third Country group and across the border. Again, it's a bilateral agreement. It requires the Americans to be on side. And let's face it, I think there are probably elements within the Trump administration that are probably happy to see migrants bypass the US and offloaded onto Canada.
Danielle Smith: So in this environment, they're not likely to want to renegotiate that. Okay. So then let's talk about, you've talked about the reasons why we may not have to worry about an even larger number of people coming across the border from the US but what should be done then? Let's look at the existing number of people coming across about 25,000 a year I think. It doesn't even seem like we have the capacity to manage that. So what should the federal government do to make it easier for provinces and municipalities to manage an influx of people?
Raj Sharma: Well, right now it's probably to open up the purse strings, the influx of the additional claimants, probably on the order of a billion dollars in terms of costs. So right now it's a situation where you can only mitigate and ameliorate. There may be some small changes that you might be able to implement. And again, this would be then increased scrutiny of visa applicants. But again, the Americans will have to be on side because the Nigerians that are coming to Canada, they are getting, US visas not Canadian visas. They're getting US visas and then accessing Roxham Road.
Danielle Smith: Is there a point where we can say we have a certain population with a certain amount of money, this is the limit to how many people were able to accept, can we make that argument under this UN agreement that we've signed on or do we just have to accept as many people as arrive in Canada?
Raj Sharma: Yeah, the economics don't really apply. And again, Canada has been in this sort of situation where it was able to perhaps be holier than thou look down our noses at other countries dealing with these sort of challenges. So you have Bangladesh or Turkey or Lebanon or countries in Africa hosting millions of refugees and we were lucky because again, we had the US that really prevented any sort of mass migration over to our side. So that won't play a factor in our legislation or a policy. And I just want to make it clear that in terms of the liberals or conservatives, I don't think had the conservatives been in power they could have done anything different in terms of what we've seen the last couple of years. For example, the liberals brought in a mechanism under bill C-97 passed this summer that even Jason Kenney or the conservatives didn't bring in.
Raj Sharma: The liberals have now made it, if anyone's made a claim in the US whether or not that claim has been heard and then across the border and make a claim in Canada, those individuals are ineligible to have their claims heard inside Canada. So that's something they've in part extended the Safe Third Country Agreement beyond the border. Now that's smart from a policy point of view, for example, and just to be clear, I'm challenging the constitutionality of that provision, but you you see that the liberals are not really too far off of the conservative sort of pitch and again you'll see that if the Safe Third Country Agreement is struck down, I assure you that the liberal government will appeal that to the federal court of appeal.
Danielle Smith: What about the idea of creating a new stream? Like what if we created a stream of economic migrants who arrived on our borders? I mean somebody who has been in America for 20 years probably is a pretty good fit for the Canadian economy if they wanted to come here. Is that crazy talk for me to even think that we could have a different economic stream?
Raj Sharma: No, you're correct. And by the way, like in terms of, we haven't quite used the word amnesty in the past, but there have been various programs that Canada's employed over the years to regularize the status of certain classes of migrants that don't perhaps quite fit to the refugee definition. So we've done this in the past, but we've done it kind of quietly and without much fanfare. And then there's probably a good reason for that as well. And so you might just see that and we might just create a class and again, the Venezuelans, for example, a highly educated population and obviously part of our hemisphere. So it may well come to that.
Danielle Smith: All right. What should we expect for the timeline on this decision? What are you expecting?
Raj Sharma: I think months, I think it's not going to be settled. Like I said, Justice McDonald is dealing with it. There's a number of interveners. It's going to be months to get a decision if the Safe Third Country Agreement is upheld, you'll see a challenge to the federal court of appeal. If the STC is struck down, you'll see an appeal to the federal court of appeal.
Danielle Smith: All right, well we will talk again, thank you so much for your insights, always appreciate it.
Raj Sharma: My pleasure.
Danielle Smith: That's Raj Sharma, Calgary immigration lawyer, so we'll keep an eye on that one, but it does sound like there's been at least enough changes in the US law in how they process new arrivals that they may well be able to make the case that the Safe Third Country Agreement is out the window. Then we've got to decide what do we do next and so that'll be a future discussion.