They’re back! The same über-progressive, China appeasing, knee-jerk anti-American members of the Laurentian Elites who advised Prime Minister Trudeau to drop the extradition case against Meng Wanzhou are back with another demand: Canada, ⇐ Allan Rock and Lloyd Axworthy ⇒ say, in an opinion piece in the Globe and Mail, must tear up the Safe Third Country Agreement with the United States because some US courts make mistakes and some US jails are poorly managed.
The story they tell is a sad one. Twenty-year-old Nedira Mustefa, they tell us, is a Muslim woman from Ethiopia who was turned away at the Canadian border because she was deemed inadmissible to Canada. Then she was detained in the USA where she, they say “lost almost 15 pounds over those four weeks because the food she was served contained pork. She was constantly freezing cold: She wore socks on her hands and huddled under a towel to keep warm during the day. She did not know when, or if, she would be released.“
Why was she detained? They don’t say. Did she break some US law by coming to the Canadian border? I don’t know. Is everyone who tries and fails to enter Canada locked up? I don’t know that either, but that seems unlikely.
US law enforcement can be capricious. Ditto for Canada, by the way. US jails might be miserable, as some in Canada are, too, I am certain. US courts make mistakes. So do Canadian courts and I believe that, as the Globe and Mail reported a week or so ago, Federal Court Justice Ann Marie McDonald made just such a mistake when she “struck down a key agreement on refugees between Canada and the United States … [she did so because she found that] … elements of the law underpinning the Safe Third Country Agreement violate the constitutional guarantee of life, liberty and security.” Judge McDonald clearly recognized the gravity of her decision and the likelihood of an appeal because, the Globe and Mail reports says, she “gave Ottawa six months of breathing room to respond to the landmark decision.”
It is Judge McDonald’s ruling that Messers Axworthy and Rock use to demand that Canada act, right now, to abrogate the Safe Third Country Agreement. They are playing partisan politics with the fact that just about the only thing a majority of Canadians hate worse than Donald Trump is the COVID-19 virus. Donald Trump’s America has become an unpleasant and, indeed, an unsafe place for too many people. President Trump, sometimes by issuing executive orders but, most often, just by rhetoric has unleashed a “nasty, brutish” aspect of some Americans and it gets taken out on some of the most vulnerable. But, despite President Trump’s efforts, America remains a nation of laws … it’s laws and their enforcement are both imperfect, but there is ample evidence that Canada is less than perfect in that regard, too. Americans are human, ditto for Canadians; humans are imperfect.
Messers Axworthy and Rock say that “The sad fact is that the United States is no longer a trustworthy partner in refugee protection.” Judge McDonald found [§94 of her ruling] that “the actions of Canadian officials in returning ineligible STCA claimants to US authorities, where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests” of the ineligible claimants because they were on Canadian soil when the Canadian Border Services Agency made the ruling. It goes back, in my opinion, to a deep flaw in the 1982 Charter ~ just one of many ~ that was exposed in 1985 in Singh v. Minister of Employment and Immigration, which decided that the simple fact of being in Canada, regardless of legal status, gave a refugee claimant full Charter protection. The judge is, I fear, legally correct, but the flaw is in the Charter not in how the rules are being applied.
Messers Axworthy and Rock (and many progressive globalists) want an open door to any and all migrants. They cannot, apparently, see that is both bad policy and, I believe, unacceptable to most Canadians. But even more, they want Canada to tell the USA and the world that Donald Trump’s America is bad! Bad!! BAD!!! They appear to hope that if Canada stops returning asylum seekers to the USA and doesn’t appeal Judge McDonald’s ruling then someone, someone other then human traffickers (including the notorious Chinese snakeheads), will notice and applaud. They are still campaigning for that worthless, temporary second class on the UN Security Council.
Let’s agree with Judge McDonald that the Safe Third Country Agreement is flawed. But, let’s stipulate that the US government will not take kindly to a Canadian demand that they amend their laws and regulations to suit our Charter. Then what? Cancel the agreement? OK, but, then what? Do we just allow anyone into Canada? Can murderers, money-launderers and sex offenders use Canada as a safe haven? Of course not. If we cancel the Safe Third Country Agreement then we will have to amend the Charter to make it crystal clear that would-be refugee claimants are not legally present in Canada, even when they are, physically, on Canadian soil, until a CBSA officer says so. In other words, we would have to overturn a long-standing Supreme Court of Camada decision … not an easy option I suspect.
Maybe we can ask the Americans to agree to a two-step border, where Canadian officials, working on US soil, screen all potential entrants to Canada before they ever set foot on Canadian soil …
… will you mind a two-step process when you return from your winter vacation in one of the sub-tropical states or just from a quick cross-border shopping trip?
Since I doubt that we can (either quickly or easily) get a constitutional amendment that will overturn Singh v. Minister of Employment and Immigration, and I doubt, even more, that the USA will agree to amend its laws and regulations to suit Judge McDonald, and I am 100% certain that Canadians will not accept an essentially open border which allows anyone, even those fleeing justice, to enter Canada and stay until their refugee claims are proved to be bogus, I can only surmise that some procedural solution will have to be found.
What Messers Axworthy and Rock propose is nonsense and it is all part of the process of trying to advance the UN’s deeply flawed Global Compact on Migration. The Government of Canada must ignore Axworthy and Rock and appeal Judge McDonald’s decision to the Supreme Court. If that fails it must negotiate a system, with the USA, which protects Canada’s sovereign right to decide who can and cannot enter the country.