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Migrants from Somalia cross into Canada illegally from the United States by walking down a train track into the town of Emerson, Man., on Feb.26, 2017.

The Canadian Press

One of the things on which Canadians like to congratulate themselves is our generous treatment of refugees. And it’s true, up to a point. The protections afforded asylum applicants in Canada not only meet the standards set by the 1951 United Nations Convention Relating to the Status of Refugees, but also exceed them.

Certainly if you compare Canadian refugee policy with that of the United States, it looks considerably more liberal. But here’s the thing: For particular types of refugee claimants, Canadian refugee policy is U.S. policy. For the better part of two decades, since the 2004 Safe Third Country Agreement between the two countries went into effect, asylum seekers arriving at land-based ports of entry on the border have been routinely turned back, without a hearing.

The premise: As each country deems the other to be “safe” in terms of its treatment of refugees (defined, under the UN convention, as those with a “well-founded fear of persecution” in their country of origin), so asylum seekers may be obliged to apply in whichever of the two they first arrive in. In practice, this means the U.S. agrees to take back those applicants Canada refuses to admit; the flow is almost never in the other direction.

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That, indeed, was the point. The agreement was struck at Canada’s request in the aftermath of the Sept. 11, 2001, attacks, when it was feared a flood of applicants, fleeing north from the suddenly less hospitable U.S., would overwhelm the Canadian refugee system. It was vintage Canadian hypocrisy: We would preserve our more generous system by offloading much of its work onto their less generous system.

Well, now our bluff has been called. A Federal Court judge has ruled the legislation implementing the treaty is a violation of the Charter of Rights and Freedoms, specifically its guarantees of the right to “life, liberty and security of the person.” The unspoken premise of the agreement, that the Americans’ treatment of refugee claimants may be a little rough and ready, but not so bad as to be intolerable – at least to those not forced to endure it – has been held up to the light of actual experience, and found bogus.

The histories of those who brought the case make harrowing reading: a woman from El Salvador who was raped by gang members, who threatened to kill her and her daughters if she went to the police; a Muslim woman from Ethiopia, a member of its Oromo minority, who had come to the United States as a child but now faced deportation; a family from Syria, also Muslims, fleeing that country’s civil war, only to find themselves in the America of President Donald Trump’s “Muslim ban.”

Yet in all three cases, Canadian border authorities were prepared to hand them back to their U.S. counterparts. Two of the three were spared this fate only because they were able to find a lawyer in time to file emergency stays of removal. The experience of the third, Ethiopian national Nedira Mustefa, is instructive. She was thrown in prison, held in solitary confinement for a week, and detained for a month in appalling conditions: without proper food, in freezing cold, in the same cells as criminals. She told the court she “did not know when [she] would be released, if at all.”

This is not unusual. Evidence before the court showed that those turned back at the border are “immediately and automatically imprisoned” by U.S. authorities, for weeks or even months – as an explicit penalty for having applied for refugee status. They may often find themselves without lawyers, without translators, even without access to a phone. And awaiting them at the end of their ordeal is the very real prospect of deportation, with far fewer legal safeguards than the Canadian refugee determination system provides.

There is no use pretending Canada is not responsible for their treatment, though government lawyers tried. In many cases, they are physically handed over to the Americans by the Canadian authorities whose protection they had sought. Yet there can be little doubt what awaits them on the other side, and little doubt that Canadian authorities know it. It is not the right to live in Canada they are thereby denied. It is the right not to be arbitrarily detained, or to be deported to face death or persecution in their countries of origin. It is, at the very least, the right to have their cases heard fairly, which one part of our laws loudly proclaims while another quietly denies.

As a practical matter, the Safe Third Country Agreement was already imploding under the weight of its many loopholes and anomalies: Applicants who arrived “irregularly,” between ports of entry, were not turned back, even as those who entered by the normal channels were. But now its very premise has been exposed as a lie. Whatever case there may have been for designating the United States as a safe third country while George W. Bush or Barack Obama were president, it no longer exists. Outsourcing Canadian refugee policy was always a morally dicey proposition. In present circumstances, it is untenable.

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That isn’t to say that the concerns that gave rise to it are entirely unfounded. The differences between U.S. and Canadian refugee policies are bound to encourage claimants to head from one to the other. Once it is known that Canadian authorities no longer have the legal power to reject their claims out of hand, they may arrive in numbers that our offices are not equipped to handle. But the alternative can no longer be just to turn them back and hope for the best – even assuming we could. Not if we wish to live up to our own lofty ideals.

This was a decision of the Federal Court, not the Supreme Court. The judge has suspended its application by six months. The government may appeal. Or it can use the time to try to come up with a solution. Six months from now there may well be a new administration in Washington. Perhaps it may adopt a less draconian position toward refugee claimants. Perhaps the agreement might even be renegotiated, in a way that gave claimants more incentive to work within the system, because they were less fearful of the result.

But whatever happens, there can be no more pretense. The United States is not a safe third country, and we know it. We have no blind eye left to turn.

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