MONTREAL -- The ruling has been years in the making, and it sends a clear message: the Roxham Road “irregular” border crossing shouldn’t exist.
That’s because, according to a federal judge’s assessment, asylum seekers should be able to make their claims at official land crossings instead. The government has six months to respond to her decision.
Justice Ann Marie McDonald ruled that the Safe Third Country Agreement, which currently allows Canada to turn such people back to the U.S. without allowing them to file a claim, is unconstitutional.
She found that the U.S. can no longer be considered a “safe country” for refugees, as it has been seen by Canada since 2004 under the reciprocal agreement.
“That deal, which was predicated on a reasonable intention back in 2004, no longer makes sense in light of America's longstanding policy of detaining asylum seekers,” said Sharry Aiken, a Queen’s University law professor.
The ruling, she said, is “very significant, a huge victory for refugee rights.”
The Safe Third Country Agreement went both ways—it meant that both Canada and the U.S. agreed that people seeking asylum must file their claim in the first country they landed in, since both countries, they agreed, offered roughly equal protection.
This meant people wouldn’t be filing duplicate claims in both countries.
But the U.S.’s refugee system has changed since 2004 and the two countries are now drastically different in how they treat refugee claimants. One of the most high-profile differences in the last few years was the separation of thousands of children from their asylum-seeking parents in the U.S.
Today, being turned away at the Canadian border can have devastating consequences, said Aiken.
“We're looking at policies of family separation, we're looking at people not getting even the basic necessities of life,” she said.
People were crossing at Roxham Road and other such backwoods spots to get around this agreement. But these crossings could become a thing of the past.
“Our experience, certainly, with the people we've met is they want to meet an immigration agent, they want to go through the proper process, they want a safe way,” said Paul Clarke of the group Action Réfugiés Montreal.
Quebec, of course, has received the lion’s share of those crossings. Tens of thousands of asylum seekers have crossed at Roxham Road in the last four years.
While the government monitored that crossing and even installed infrastructure there to make it safer, other irregular crossings can be much more dangerous.
“We did see really difficult stories in Manitoba, for example, where people were risking their lives ultimately and losing fingers and limbs to frostbite in order to try and make it across the border,” said Marisa Berry Mendez of Amnesty International Canada.
The ruling doesn’t take effect until January, but Amnesty International is asking the government to implement it right away.
“It shouldn't continue for a day more,” said Berry Mendez, “so we really hope the government will act fast and annul the Safe Third Country Agreement completely.”
The federal government is currently reviewing the decision, and it has the option to appeal.
