What if Joe Biden doesn’t want to close Roxham Road? Canada needs a Plan B

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The federal government has two possible paths out of the dead end at Roxham Road. The first route goes through Washington, D.C. – and is largely out of Ottawa’s hands. The second goes through Ottawa – and is entirely within Canada’s control. The best option? Pursuing both paths, simultaneously.

Taking the road through Washington means amending the 2002 Safe Third Country Agreement (STCA), which currently only covers official border crossings, so it applies to the entire Canada-U.S. border. That could be as simple as adding a few words to the existing accord. But that can only happen if the Americans agree, and despite years of quiet diplomacy, they have yet to do so. Unless Prime Minister Justin Trudeau can persuade President Joe Biden to do Canada a favour, then Plan B – the road through Ottawa – may be the only open road.

Canada’s immigration system has some of the world’s widest doors, but also among the tallest walls. That’s not a contradiction: Public support for the open door, in the form of high and sharply rising immigration, is bolstered by the walls. Three oceans and a battery of bureaucratic ramparts make it so that immigrants and even refugees generally don’t get to choose Canada unless Canada chooses them. Prospective immigrants in effect bid to be selected, usually from overseas, by showing that they have such attributes as advanced educational and professional credentials or family in Canada or sponsors. And then they demonstrate the traditional Canadian value of waiting patiently in line.

Bureaucratic walls make it very difficult to buy an airline ticket to Canada without Canada’s permission. Residents of a long list of countries – nearly 150 of them – need a visa to come, even as tourists, and they’re unlikely to get it if there’s a risk they won’t return home. That includes the risk that, once on Canadian soil, they might make a refugee claim.

The STCA was designed as another brick in the bureaucratic wall, covering the 8,900-kilometre border with the U.S. If someone comes to an official land crossing and asks to apply for asylum, they will be sent back to the U.S. to make their refugee claim. But Canada can only send refugee claimants back if the U.S. is willing to take them, and Washington has so far only agreed to accept the return of refugee claimants who crossed from the U.S. at an official crossing.

Even if the Biden administration can be persuaded to close the loophole, it may not be enough. In 2020, the Federal Court ruled that returning asylum seekers to the U.S. under the STCA is a violation of the Charter of Rights and Freedoms. The decision was subsequently overturned by the Federal Court of Appeal, and the issue is now before the Supreme Court. It is expected to rule later this year. If it sees things as the trial judge did, then even the STCA in its current form is in jeopardy.

All of which is why the government had better have a Plan B. The best one, and maybe the only one, involves reforming and rethinking Canada’s refugee-determination system, and probably pouring a lot more money into it, so that it works faster and reaches decisions sooner. That won’t be easy, but it is within Ottawa’s power.

The people arriving at Roxham Road, the unofficial border crossing in Quebec, may be taking advantage of a loophole, but they aren’t trying to sneak into Canada. They’re not trying to become illegal immigrants. On the contrary, they’re going to Roxham Road and not one of the thousands of other places where it’s easy to walk into Canada precisely because the RCMP are there to “intercept” them. They want to be intercepted, since that’s the way to get into the system for making a refugee claim.

If someone is a genuine refugee – meaning they have a well-founded fear of persecution in their home country – then they are entitled to protection and to remain in Canada. But claiming refugee status doesn’t make you a refugee. An inquiry into the evidence must be made. And in Canada, that can be an exceptionally long, slow process.

Ottawa says the average time to process a refugee claim is now 22 months. Given the sudden rise in irregular border crossers – almost 40,000 last year and close to 5,000 in the first month of this year, nearly all at Roxham Road – processing times risk growing ever longer. Refugee claimants are entitled to work permits, which all things considered is much better than forcing them to remain on welfare while they wait for the bureaucratic snail to creep toward a decision. But the fact that a decision may be years in coming, and that negative decisions can be appealed, and that humanitarian concerns weigh against the removal of someone who is not a refugee but has nevertheless put down roots, may be an inducement for economic migrants to try their luck at Roxham Road.

All of which is why Ottawa has to speed up the system. The last time Roxham Road became a major source of refugees, back in 2017, the government responded by pumping extra resources into the Immigration and Refugee Board (IRB), and things started moving a bit faster. Combined with the near-total shutdown of the entire border during the pandemic, much of the previous refugee backlog was cleared.

But refugee claims are once again spiking, and the small improvements made to the system over the past few years don’t look to be up to the task. In its 2022-23 departmental plan, the IRB says its goal is to finalize 80 per cent of refugee protection cases within – wait for it – 36 months. Canada’s system for deciding who is a refugee, and who is not, needs a deep rethink. It has to get faster, not just marginally but exponentially.

We can ask the Americans to in effect close Roxham Road, but they’re not likely to agree. We can hope that asylum seekers simply stop showing up, but that’s even more unlikely. Our best option, maybe our only option, is to redesign the refugee-determination system so that, while fully respecting Charter rights, it can process far more cases, far faster – allowing Canada to quickly decide who should be welcomed as a refugee and who should be told: Sorry, take a number and go to the back of the regular immigration queue.