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In keeping with the objectives of the Safe Third Country Agreement, the logical step would be to instruct border guards to transfer to the Lacolle Port of Entry all claimants they arrest at Roxham Road. The latter would then be returned to the U.S. just like most claimants who arrive directly at Lacolle. Given that the Agreement is a treaty between Canada and the U.S. that addresses the administrative collaboration when border guards deal with refugee claimants, it cannot replace the actual Charter obligations that bind Canadian officials. To keep the integrated border co-operation running smoothly, an amendment to this treaty would be required to clarify that it continues to apply if border guards witness a claimant crossing illegally from the U.S. (and vice-versa). This would be the simplest way to eliminate the Agreement’s major loophole that incentivizes illegal entry.

Out of respect for those refugee claimants trying to entering legally, as well as Canadians who ultimately pay the bill for maintaining a fair refugee system, our leaders should not pretend their hands are tied by the Charter when it comes to dealing with notorious crossings like Roxham Road. Concrete steps to amend the Safe Third Country Agreement are needed. Otherwise, the symbolism of Roxham Road, and particularly the impression the border is not enforced rigorously, risks undermining the public support that is crucial for refugee protection in the long-term. Indeed, recent polls are suggesting the country’s pro-immigration consensus could be jeopardized if the government maintains its current position on border refugee claimants.

Michael Barutciski is a lawyer and faculty member of Glendon College (York University), as well as associate editor of Global Brief magazine. He has taught refugee law/policy on several continents.