Politics·CBC Explains

What is the Safe Third Country agreement?

Experts say a loophole in the agreement is what has driven tens of thousands of people to make irregular border crossings into Canada over the last few years.

Prime Minister Trudeau argued this week for renegotiating the long-standing deal

An RCMP officer looks on as asylum seekers cross the Canada-U.S. border at Roxham Road, on Jan. 5, 2023.
An RCMP officer looks on as asylum seekers cross the Canada-U.S. border at Roxham Road, on Jan. 5, 2023. Many experts argue a 'loophole' is what has sparked the influx of tens of thousands of people over the last five years to irregular border crossings like this one. (Charles Contant/CBC)

Concerns about irregular border crossings in Quebec have once more sparked calls to rework how Canada handles refugee claimants arriving from the United States.

This week, Prime Minister Justin Trudeau said he would look to renegotiate the deal with the United States.

"The only way to effectively shut down not just Roxham Road, but the entire border to these irregular crossings, is to renegotiate the Safe Third Country Agreement, which is a serious work that we are doing as a government right now," Trudeau said Wednesday.

Jamie Liew, a University of Ottawa law professor, told CBC Radio's The House that the government should go further and suspend the Safe Third Country Agreement (STCA) outright.

LISTEN | What should be done about the Safe Third Country Agreement?:
Pierre Poilievre is calling on the government to close the makeshift border crossing at Roxham Road within 30 days. Justin Trudeau says it’s not that simple. University of Ottawa law professor Jamie Liew joins The House to explain what the Safe Third Country Agreement is and whether it should be renegotiated.

Liew is part of a legal team for an intervenor in a case challenging the constitutionality of the STCA at the Supreme Court of Canada.

Here's what you need to know about the controversial agreement.

What does the STCA do?

From the Canadian perspective, the key feature of the STCA is that it prevents people from claiming asylum in Canada if they entering at an official land border crossing with the United States. The idea is that asylum seekers should make their claim in the first safe country they can.

The agreement aims to help "both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border."

But asylum claimants can have their appeal heard if they do not cross the border at official ports of entry, and many experts argue this "loophole" is what has sparked the influx of tens of thousands of people over the last five years to places such as Roxham Road, Que.

"Because [the STCA] is in place, it drives people outside of the ports of entry, so we see people going to the border crossing where there is no official 'port of entry,'" Liew told Catherine Cullen, host of The House. Entering Canada at irregular crossings is illegal, but once in the country, people can make asylum claims.

Liew argued that because some people might not consider the United States as a safe country, and because of differences in refugee claim assessment processes, there are questions about the legality of the STCA. Government lawyers, meanwhile, have previously argued that people sent back to the United States from Canada have access to many legal protections and are not being returned to their country of origin.

Some exemptions are baked into the STCA, including for unaccompanied minors or claimants with close relatives in Canada.

Where do the federal parties stand?

The NDP and Bloc have both also called for the agreement to be suspended. The Conservatives, meanwhile, have argued previously that it needs to be renegotiated.

"We have been trying, since 2017, to make this prime minister understand that he needs to renegotiate the safe third country agreement with the Americans to resolve the situation at Roxham Road," Pierre Paul-Hus, a Conservative MP who represents a Quebec riding, said in the House of Commons earlier this month.

"Instead of dealing with the issue, he is letting it deteriorate."

And this week, Conservative Leader Pierre Poilievre called on the government to close the Roxham Road crossing within 30 days. 

Federal Conservative Leader Pierre Poilievre speaks at the the National Coalition of Chiefs Clean Energy Summit In Calgary on Friday, Feb. 17, 2023.
Conservative Leader Pierre Poilievre speaks at a summit in Calgary on Feb. 17. The Conservatives say the agreement needs to be renegotiated. (Dave Chidley/The Canadian Press)

The Liberals have in the past expressed a desire to "modernize" the agreement, while arguing that simply removing it will not solve the problem at crossings like Roxham Road.

But this week Trudeau went further, arguing for the deal to be renegotiated with the United States.

"I can assure you that in my conversations directly with President Biden, I have told him it is a priority for us," Trudeau said in French earlier this week.

But in an interview with CBC News Network's Power & Politics on Wednesday, U.S Ambassador to Canada David Cohen did not confirm that negotiations with Canada were underway regarding the agreement.

The agreement is also facing a court challenge launched by refugee advocates, which has worked its way up to the Supreme Court of Canada.

WATCH | U.S. Ambassador on prospect of STCA renegotiation:

Renegotiating Safe Third Country Agreement won't stop irregular migration: ambassador

3 months ago
Duration 3:53
"Whatever you do to the Safe Third Country Agreement is ... going to do very little about irregular migration," said U.S. Ambassador to Canada David Cohen. "If you're serious about trying to deal with irregular migration, you have to deal with the underlying causes."

What would suspending the STCA do?

Suspending the STCA would mean people looking to claim asylum at official land ports of entry between Canada and the United States would no longer be turned back, and could make their claims in Canada.

Liew argues that suspending the STCA would shift claimants away from crossings like Roxham Road and back to official points of entry, where the system is more equipped to handle them.

Some have raised concerns that removing the STCA would create a "pull" factor for Canada, incentivizing even more claimants to try to get into the country. But the extent of that effect, if it materialized, is unclear. Immigration and Refugee Board CEO Richard Wex told a parliamentary committee last year that projections indicated it would have a "material" impact, but he did not know to what degree. Asylum claims at land borders did drop significantly after the introduction of the STCA.

Liew said that simply shutting down Roxham Road, however, would not solve the problem.

"You shut that down, and it will just pop up elsewhere."


Christian Paas-Lang covers federal politics for CBC News in Ottawa as an associate producer with The House and a digital writer with CBC Politics. You can reach him at christian.paas-lang@cbc.ca.

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