The Sunday Edition

Political rhetoric about border control part of a 'moral panic', says law prof

It’s not the biggest issue in this election, but the rhetoric around asylum-seekers and immigrants has often been heated and divisive. University of Toronto law professor Audrey Macklin, one of Canada’s foremost experts on migration law, will dissect the myths and misperceptions of immigration in Canada.
Conservative leader Andrew Scheer makes a morning announcement at the Canada-U.S. border on Roxham Road during a campaign stop in Lacolle, Que., on Wednesday. (Jonathan Hayward/The Canadian Press)
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Rhetoric about asylum-seekers and immigrants has been heated and divisive during this election campaign, and many voters seem confused about the realities on the ground.

A study released by the Angus Reid Institute this week found that there are "colossal misperceptions" about immigration in this country. The study said Canadians grossly overestimate the number of people who come in as refugees, while underestimating the number of skilled economic immigrants. They also misunderstand where newcomers in Canada arrive from. 

During an election period, it can be difficult to cut through the noise and separate facts from fiction — especially when so much of the political rhetoric is designed to pander to voters' emotions, as well as to stoke their fears and anxieties.

But Audrey Macklin says that's exactly what we need to do. 

Audrey Macklin is Chair in Human Rights at the University of Toronto's Faculty of Law. (Submitted by Audrey Macklin)

Macklin is one of Canada's foremost experts on migration law. She is Chair in Human Rights at the University of Toronto's Faculty of Law, and Director of the Centre for Criminology and Sociolegal Studies. She is also a Fellow of the Canadian Institute for Advanced Research and of the Pierre Elliott Trudeau Foundation, and served as an adjudicator on the Immigration and Refugee Board.

Macklin says that despite the heated rhetoric from some political parties, Canada hasn't lost control of its borders and hasn't faced a crisis.

Asylum-seekers: rhetoric vs. reality

Despite being a small percentage of newcomers in Canada, asylum-seekers have been at the centre of much of the debate around migration.

According to Angus Reid, Canadians believe refugees or humanitarian immigrants make up 30 per cent of newcomers to Canada. In reality, it's 15 per cent. 

By far the largest category of newcomers to Canada are "immigrants in the economic category — people who are selected for their labour market contribution plus their immediate family members," says Macklin. Economic class immigrants make up 58 per cent of newcomers to Canada, and family class immigrants make up the remaining 27 per cent. 

Still, political rhetoric often implies that we need to protect our borders from a migrant population that we cannot choose. 

Macklin claims that this protectionism is built on a fallacy and "appeals to a kind of moral panic around control."

"There is ... an idea that countries are sovereign to the extent that they can hermetically seal their borders," she says. "This is an utterly irrational understanding of how borders work."

A quaint country road in upstate New York, bordering on Quebec, has become an internationally known footpath for hopeful migrants. Nearly 50,000 from all over the world have passed this sign since 2017 on their way to an unofficial U.S.-Canada border crossing. (Sylvia Thomson/CBC)

She argues that claims about "waves" of refugees attempting to gain entry into the country do not hold up against the objective realities of border crossings. 

She cites Canada's geography as one of the reasons why she believes that there is an unfounded panic over immigration. "Canada is one of the most geographically isolated countries in the world," she says, "simply by the accident of geography."

She also believes that the public doesn't realise the extent to which government policy is geared towards preventing refugees from entering the country. "Canada expends extraordinary resources ... in deflecting and preventing asylum seekers from ever reaching Canada, and it does so in ways that aren't visible to us," she says.

"You have all of these techniques that are designed to prevent people who might claim refugee status," Macklin says, citing the Safe Third Country Agreement as an example. 

Safe Third Country Agreement

The Safe Third Country Agreement, which came into effect in 2004, stipulates that those seeking entry through a land-based port of entry at the U.S.-Canada border will be turned back, because the U.S. is considered to be safe for refugees. 

Conservative Leader Andrew Scheer has argued that people crossing outside official points of entry, to avoid being turned back under the Safe Third Country Agreement, are exploiting a loophole. 

However, Macklin claims that this is a misunderstanding of the Agreement.

"The Safe Third Country Agreement is best understood itself as a loophole in our international refugee regime," she says. "Under the Refugee Convention that we signed, we promised that if somebody met the definition of the refugee we would not send them away. But the Refugee Convention presumes that 'send them away' means 'send them back to their country of nationality', where they would fear persecution. It is silent about sending them to a third country, because nobody was really thinking about that," Macklin says.

"So what Canada has done with the United States is exploit a loophole in the Refugee Convention to say, 'Oh, we can't send them back to their country of nationality, but we can send them to some other country.'"

There's a very strong argument, that if the United States ever was a safe country for refugees, it is no longer a safe country for refugees- Audrey Macklin

However, Macklin says the Safe Third Country Agreement does require that each country is actually safe for refuge, which means it is a place where "they will be treated fairly in the process, and where the country ... applies the law appropriately."

A Colombian family at the Roxham Road crossing says they are fleeing threats in their country. They smiled and appeared relieved to be at the border. Colombians have been applying for asylum in Canada for decades, and about half who arrive this way have been accepted as refugees. (Susan Ormiston/CBC)

Macklin contends that given the current divisive politics of the U.S., "there's a very strong argument, that if the United States ever was a safe country for refugees, it is no longer a safe country for refugees."

Is there an immigration crisis?

Ultimately, Macklin argues that when politicians talk about immigration 'crises,' it is more often than not an obfuscation of the facts. "There is no crisis. There are challenges, no doubt," she says. "We have more [asylum-seekers]. That's not a crisis. That's an administrative challenge ... We have not lost control of our borders."

Language like floods, inundation, waves are all useful in conjuring up a kind of fear. They're images that are deliberately designed to do that- Audrey Macklin

Macklin emphasizes the fact that when people seek asylum from persecution, Canada has a duty to honour its legal obligations under international law. "We promised that if people reach our borders, and they ask for refugee protection, we will determine if they're a refugee," she says. "If they meet it then they will not be returned. So they are not doing anything wrong."

For Macklin, language and rhetoric play a key role in the misunderstanding and panic surrounding the immigration debate. "Language like floods, inundation, waves are all useful in conjuring up a kind of fear," she says. "They're images that are deliberately designed to do that."

Click 'listen' above to hear the full interview.