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The USA-CANADA border in St. Bernard-de-Lacolle, Quebec, on Jan. 14.Christinne Muschi/The Globe and Mail

Is Canada in the midst of a border crisis? It’s hard to tell. Prior to the outbreak of the COVID-19 pandemic in 2020, however, there was no doubt about it.

In 2017, a dramatic surge in the number of people entering Canada illegally on an uncontrolled rural road running across the border between Quebec and New York State was the hot story of the summer.

Roxham Road was all over the news. Where once a few hundred people every month were intercepted there by RCMP officers, the number suddenly jumped in July and August of 2017 to more than 8,500 in total, and hit a total for the year of 18,836.

The anti-immigrant policies of the Trump administration were blamed for the influx, and the numbers were similar over the next two years: 18,518 in 2018, and 16,136 in 2019.

The demand choked Canada’s already overloaded refugee system, creating huge backlogs. Federal opposition politicians called it a crisis and blamed Ottawa. In Ontario, Premier Doug Ford cut legal-aid funding for refugee claimants, saying it was Ottawa’s responsibility. The City of Toronto pleaded for more money to handle to the influx of refugee claimants. Quebec, too, was badly strained by the spike.

Then the pandemic hit. In March, 2020, the Trudeau government closed the entire border to all but essential travel, and the RCMP started to turn back asylum seekers at Roxham Road. The number of people entering there illegally plummeted to fewer than 30 a month for the rest of the year, and stayed low well into 2021.

But ever since Ottawa lifted that restriction last November, the problem has returned with a vengeance. In 2022, the total number of people intercepted by the RCMP on Roxham Road was (drum roll, please) … 39,171.

That is more than double any previous year, and it’s a startling number. The Immigration and Refugee Board of Canada, which by law has to give an oral hearing to anyone making a plausible refugee claim in Canada, saw its backlog of cases jump from 56,322 in January, 2022, to almost 71,000 by December.

So now is it a crisis? Maybe not quite yet, but Ottawa is playing with fire on Roxham Road.

The heart of the issue is the Canada-U.S. Safe Third Country Agreement. The 2004 deal means that anyone making a refugee claim in either country has to do it in the first one they land in. It’s similar to the Dublin Convention in the European Union, which was designed to prevent people from making refugee claims in more than one country.

The STCA has exceptions, such as for unaccompanied minors and people who have a Canadian visa. And, critical to the Roxham Road question, it only applies at official land border crossings.

Since the issue arose in 2017, the Trudeau government has leaned on its stated desire to “modernize” the STCA. Such a fix would presumably close the loophole that makes Roxham Road an easy conduit from the United States into Canada for people from such places as Haiti, Nigeria and Colombia – the top three “countries of alleged persecution,” as the IRB calls them – seeking refugee status here.

Yet, more than five years later, nothing much has been done. Just last month, Prime Minister Justin Trudeau reiterated his government’s desire to reach a new deal with the U.S., but it wasn’t apparent there had been much progress.

That might be because the concept of a “safe third country” is highly contentious. The SCTA has twice been deemed invalid in federal court, in 2007 and 2020, and twice saved on appeal. The Supreme Court of Canada held hearings on it last fall, and is expected to rule on it by the summer.

In the meantime, thousands of people are entering Canada illegally, where they are immediately detained and screened. Those who are eligible for a refugee board hearing are issued a conditional removal order but can stay in the country legally, find work and put their children in school while their case works its way through the growing IRB backlog. Ottawa provides them with health care. Those whose claims are refused are subject to removal, eventually.

Canadians seem sanguine about the issue, but this is clearly something that needs a resolution. The Trudeau government’s desire to resolve it by some day, maybe, renegotiating a problematic agreement that might not survive the Supreme Court is a stall tactic, not a plan – and a crisis in the making.