× Expand Wilson Ring/AP Photo A family from Nigeria waits to cross the border into Canada at Quebec’s Roxham Road, where nearly 50,000 asylum seekers have crossed since 2017, on November 4, 2019. A case being heard in a Toronto court this week could end the use of this unofficial crossing point.

TORONTO, CANADA – Canada’s “safe third country” asylum agreement with the U.S. is on trial in a federal court in Toronto, as migrant rights’ advocates look to raise standards for newcomers. The agreement requires that migrants file for asylum in the first safe country they reach. Because of the way most migrants travel—south to north—it has the effect of forcing asylum seekers to file in the U.S., even if they wanted to file in Canada.

The advocates are arguing in court that the U.S. does not meet the requirements for refugees and asylum seekers to be considered “safe” under the agreement’s specifications. Canada can unilaterally suspend the agreement, though it would need to engage the U.S. to cancel it altogether.

But Member of Parliament Jenny Kwan, a member of the New Democratic Party’s “shadow cabinet,” where she holds the political post for immigration, refugees, and citizenship, says she wishes the case had not come to trial at all.

“I would rather that the [Canadian] government had shown the leadership to suspend the safe third country agreement without community members having to take the government to court,” Kwan told me when I spoke with her last week. “Clearly, in my view, what’s happening in the U.S. indicates that the U.S. is no longer a safe third country.”

Immigrant rights’ advocates in court last week argued that Parliament must do its duty of reviewing whether America meets the safe third country standards. Advocates highlight the Trump administration’s anti-immigrant policies to illustrate just how different the U.S. is from Canada.

“We see through the media, children are being locked up in what I call ‘baby jails,’” Kwan said. “They’re being separated from their parents forcibly. How and under what circumstances can we deem that to be a safe country for these asylum seekers?”

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Kwan’s party, the NDP, is more progressive than Prime Minister Justin Trudeau’s Liberal government. Despite Trudeau’s apparent zeal for welcoming migrants, Kwan says he and his government haven’t done enough. In particular, she says that Canada has not stood up for vulnerable refugees and asylum seekers in the face of Trump’s policies.

“Canada has had an excellent international reputation as someone who is compassionate as a country, who has always leveraged our reputation to advance these humanitarian causes,” Kwan said. “But [this time] we have not done so. In fact, we have buckled under what I see as discriminatory laws in the Trump administration and we’re afraid to stand up for those kinds of policies.”

The agreement became a wedge issue in Canada’s national elections in October because of a so-called loophole. The agreement does not apply to asylum seekers who cross in between official ports of entry. This has led to asylum seekers famously crossing at Roxham Road in Quebec, a formerly inconspicuous country road, and in Emerson, a rural town in Manitoba. Since 2017, nearly 50,000 asylum seekers have crossed this way. While these numbers are insignificant in terms of the more than 70 million displaced people worldwide and in terms of Canada’s own historical refugee numbers, they became prominent in messaging among right-wing parties, with one party leader calling the border a “sieve.”

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The anti-immigrant parties proposed that Canada close the loophole, applying the safe third county agreement everywhere, something Kwan believed would “create an invisible wall.” Kwan said she thinks the only reason Liberals didn’t bow to pressure and do this is because they can’t make such a change unilaterally.

Conservative political pandering did force Liberals to engage the U.S. in bilateral talks to alter the agreement, though nothing seems to have seriously come of it. Nonetheless, the fact that Liberals indicated they would want to close the so-called loophole in the agreement was a win for Conservatives. Kwan says that Liberals are “trying to sound as though they are very compassionate but they are taking actions that are not.”

She noted the Trudeau government’s proposed changes to Canada’s Immigration and Refugee Protection Act, which would prevent asylum seekers from filing for asylum in Canada if they had already made asylum claims in other countries, including the U.S. The change mimics Trump’s “transit ban,” and fulfills the Conservative desire to stymie irregular border crossers. Trump’s own rule was immediately challenged in court. Canadian media called it an “about-face” on asylum.

“The Liberals say a lot of nice things but the reality of what we’re doing on the ground is quite different,” Kwan said. Indeed, she pointed out how difficult it is to cross irregularly to claim asylum, rather than through an official point of entry, citing the well-publicized case of an asylum seeker who lost all of his fingers to frostbite.

“People are only trying to cross over to Canada because they need to get to a place of safety,” Kwan said. “Who would do this for fun? To risk life and limb?”

Kwan represents Vancouver East, a district that has historically been a major destination for newcomers in Canada. Kwan said that “things have evolved somewhat” as many other Canadians cities become multicultural. But Vancouver East’s formative days mean that it’s still “one of the most progressive neighborhoods” in Canada. “We also push for environmental and social justice for all,” Kwan said. “We often are people who are marginalized in society, but we also see that justice and equality for all is a basic human right so when we fight for things in Vancouver East, we are fighting for all across the nation.”

According to Kwan, Canada has not entirely escaped the xenophobic and anti-immigrant rhetoric that has permeated many refugee-receiving nations. She told me that there has been a shift in language and approach since she first arrived in Canada in 1976 from Hong Kong. Previously, racism, discrimination, and xenophobia were expressed more discreetly, she explained. “More and more you have actually people coming out as outright racist toward the immigrant or refugee community,” she said.

Kwan told me about the examples she hears—without any evidence—of how newcomers take advantage of the system. Some have told her that refugees receive $10,000 for resettlement, while Canadians go homeless. “People are just making this up as they go along and they go on social media to put this out there with no verification and often their own identity is not clear either. And so this is whipping up fear in the hearts and minds of Canadians and creating this view that these asylum seekers are not that and they’re trying to game the system,” Kwan said.

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Trump’s rhetoric has only abetted this decline in feeling toward refugees in Canada, Kwan told me. “It kind of unleashed, in my view, this sentiment that it’s OK to be discriminatory and that it’s OK to have these racist sentiments toward people,” Kwan said.

Kwan told me she has felt this shifting tide herself. “I’ve been in elected office for 26 years from the municipal level to the provincial level to the federal level,” Kwan said. “While I’ve had my share of hate mail over the years, I’ve never had anybody say right to my face that I need to go back to my own country of origin as an immigrant—except for two years ago.”

At a Vancouver rally about eliminating racism, Kwan said, a “white supremacist came up to my face to tell me and all the other people at the rally that we’re not wanted, that they don’t want us here in Canada because of the color of my skin … That’s the first time in my entire elected life that someone has said that right to my face. So those sentiments, those white supremacist sentiments, are here and in Canada.”