248 THE ADVOCATE
VOL. 77 PART 2 MARCH 2019
country, and their goal is to remake Canada in their own image. The
migrants are crossing the border illegally, but under international law and
Canadian practice, that illegality is merely technical as long as the person
makes an asylum claim. The costs of labelling such behaviour as criminal
is to “solve” the problem through increased enforcement at the border
through more officers, drones and other technology. These solutions are
likely to be counterproductive.
The oft-repeated flaw with these views is that ascribing illegality to “irregular”
asylum seekers misstates the law around such crossings. Under international
law, migrants are protected from prosecution for illegal entry as
long as they present themselves to Canada in order for their claim to be
assessed. There is no evidence that the increase in migration has led to
avoidance of the state; rather, there is a quite predictable and orderly flow
of migrants across unofficial yet specific border entry points that are
largely manned by Canadian police and border service agents.
The cumulative effect of these legal, institutional and discursive misconstructions
is to put blinkers over the appropriate response to the increased
numbers of migrants and the new reality of migration in Canada. Failing to
see the legal requirement to review the STCA and the inability of the United
States to satisfy the requirement of “safety”, misunderstanding the backlog
as a novel and acute challenge for the Immigration and Refugee Board, and
insisting that the number of migrants amounts to a crisis posing an existential
challenge to Canada lead to the conclusion that there should be greater
policing and an expansion of the STCA to exclude any and all migrants who
enter Canada from the United States.
Tightening the border, including by expanding the STCA to cover all of
the border, poses distinct problems. The first is that it involves mimicking
to some degree a refugee protection system that is failing to meet international
standards. The second danger is that engaging in the hyperbolic discourse
of crisis and criminality risks succumbing to an ideological shift to
right-wing extremism that is even more blinkered in its attention to the
international and domestic legal regimes that are supposed to regulate
migration. Rather than revise Canada’s refugee system, the populist
approach tends towards ever-increasing controls if not outright abolition.
The final and related danger that arises is that these misconceptions and
their proposed solutions overlook the legal implications of the STCA. It permits
Canada to refuse asylum applications only if certain conditions are
met. Proponents of greater policing and expansion of the STCA focus on the
former without any attention to the latter, in violation of the STCA itself.
Ignoring that text, whatever its merits or shortcomings, is not only hypocritical
given the allegations levied against “illegals” but contributes to the erosion
of the rule of law. If anywhere, this is where the crisis exists.