It's been over 20 years since I first became involved in analyzing Canada's refugee determination and immigration admission and removal systems, and I would say the public attention currently directed to these issues is unprecedented – appropriately so.
My involvement began while serving as Executive Officer of the Canadian Police Association after the murder of a young Toronto police officer. Constable Todd Baylis was killed in June of 1994 by a non-citizen, career criminal named Clinton Gayle, who'd been ordered deported but was released on bail because the removal process was so slow.
In digging into what exactly had happened, we became aware of multiple systemic deficiencies in both immigration screening and enforcement (which federal officials were scrambling to cover up) as well as how counter-intuitive Canada's refugee determination process was. Thanks in large part to the post 9/11 creation of the Canada Border Services Agency and third-party advocacy, we've made some improvements in both areas (more required on expedited criminal removals), but recent events have demonstrated that it's time once again to modernize and improve both systems.
Two current situations most clearly demonstrate the need for informed and substantive reforms. One of the bizarre facts we discovered in the 90s was that most persons seeking refugee status in Canada arrived from (wait for it) the United States. They weren't Americans, and they weren't at risk – but they preferred to be refugees in Canada because of our increased public welfare benefits. We found that more than 50% of the refugee claims were made by people already in Canada – this raised a few eyebrows as well. In the 90s, by the Ontario government brought the "entry from U.S." issue to the attention of both the Canadian federal government and with the U.S. government.
Ottawa originally was not interested, but discussions continued with U.S. officials – especially after 9/11 when the Ontario-US border security relationship was very close and very effective. By that point I was working with the Ontario Government and had been appointed as a Special Security Advisor to Public Safety and Security Minister Bob Runciman (who was a fierce champion of pragmatic improvements in Canada-U.S. border security and trade, and who just retired from a distinguished tenure in the Senate).
These discussions were the beginning of what ultimately became the Canada-U.S. Safe Third Country Agreement. A critical catalyst to the U.S. participation was the realization by Americans that working together with Canada is in their best security interests as well.
The formal Safe Third Country Agreement between Canada and the U.S. was concluded in 2004 with supporting IRPA Regulations prepared by the federal Department of Justice. It was only in 2008, following a flood of Mexicans (who had illegally been in the U.S.) entering Canada through designated ports of entry and thereafter claiming refugee status, that it was revealed that the Agreement contained a glaring loophole in s. 4.2, which exempted persons from countries without a visa requirement. It is unclear why this exception was enacted, but it has become quite a problem.
Another defect in the Agreement has recently been exposed with the illegal entry of thousands of non-US citizens legally in the United States who have entered Canada between ports of entry (poe) to seek refugee status. Again, for reasons which have never been explained, this between-poe entry, which is illegal under IRPA, is an exception to the STC Agreement pursuant to s. 4.1 of the Agreement. Canadians are literally watching in shock and disbelief as persons breaking our law are being rewarded for doing so as they seek refugee status which is itself illogical given their factual circumstances.
The current situation of illegal entry to Canada of persons from the United States is largely a consequence of the U.S. announcement of the future termination of the Temporary Protection Status that was granted to approximately 58K Haitians after a 2010 earthquake. Ironically, Canada cancelled its special protection program for Haitians in 2016. Similar cancellations of the US program are expected over the next year for Hondurans (86K), Salvadorians (263K), and unspecified numbers of Syrians, Somalis and Yemenis. It should also be noted that among the thousands of supposed refugee claimants entering Canada, up to 20% are not Haitians but are people from the Middle East and Africa who obtained U.S. visas and then headed north to claim refugee status in Canada. This fact is alarming, as those persons could have sought visas to enter Canada and upon arrival at a Canadian airport then sought refugee status, because the Safe Third Country Agreement only applies to entrants from the US and at land border crossings. Might it be that bogus refugee claimants (and their 'advisors') have learned that Canada's visa screening process is more diligent than the US' and that the best route to asylum is by illegal entry to Canada between its designated land ports of entry (which effectively circumvents the Safe Third Country Agreement)?
Adding to the allure of Canada as a perceived safe haven, is Prime Minister Trudeau's well-intentioned but naively ill-informed 'tweet' in January of this year (following Donald Trump's initial travel ban) when he said: To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada. To the modern immigration and human smuggling industry, this comment was an immediate signal that Canada was the destination of choice – especially for people with less-than-legitimate claims.
As the increasing numbers of illegal entries continues, especially in Quebec, the issue has become a growing concern to Canadians. This concern then prompted less-than-accurate comments from the Prime Minister who is obviously trying to defuse a growing political storm. The Prime Minister is trying to avoid the truth when he refers to the illegal entry as 'irregular entry' and even falsely claims that there is no 'advantage' for persons entering Canada between its ports of entry. He has been called out on this false claim by noted refugee advocate Janet Dench who called the PM's claim "...obviously false."
This is admittedly a difficult situation – one that requires confronting the facts rather than trying to conceal them. We want to retain a compassionate and efficient refugee determination process but, in today's world, we also need to ensure that our system does not unintentionally encourage and reward those who seek to abuse it.
The other major issue that illustrates the need for significant reform is the adequacy of the screening being done by CBSA of persons seeking entry to Canada. This was first exposed over a decade ago when it became clear that persons who had been deported for criminality were able to use phony ID and escape detection as they repeatedly re-entered Canada (and went on to commit new crimes). While CBSA has taken some measures to improve their screening capabilities, this remains an ongoing problem because the threat environment has dramatically changed with the reality of Islamist terrorism and its stated strategy to covertly get its adherents into Western countries so they can commit domestic terrorism attacks (or encourage lone wolf attacks by citizens of those countries). The recent confirmation by German intelligence authorities that ISIS has obtained 18,000 legitimate Syrian passports and intends to use them to infiltrate the waves of 'refugees' seeking entry to Western countries, as they previously boasted they would do, raises the stakes dramatically and requires modernization of our immigration screening measures.
It is clearly time to recognize that in today's world of enhanced travel, document fraud, and ideologically-based terrorist violence, that the traditional methods of immigration screening and removal must be modernized.
Some of this has begun, with limited biometric information collection and sharing among Five Eyes partners, and the CBSA Advanced Passenger Information Initiative that collects air passenger screening data before flights depart for Canada rather than after. More needs to be done.
With this in mind, the following suggestions are offered for consideration to modernize our immigration and refugee systems:
- Attempt to renegotiate the STC Agreement with US to:
• eliminate visa free exceptions;
• include entry between ports of entry for persons lawfully admitted to either country or who were lawfully in either country including while awaiting or contesting removal;
• expand the joint force ShipRider program to permit mobile patrol, mutual immediate interception and return of persons apprehended in defined circumstances
- Expand CBSA mandate to expressly include mobile enforcement between ports of entry and participation in the ShipRider program and restore front line operational positions eliminated pursuant to the 2010 Deficit Reduction Action Plan.
- Complete joint Canada-US sensor technology procurement and deployment as contemplated but not delivered in the Beyond the Border Agreement and the Border Integrity Technology Enhancement Program with defined priority areas and timelines.
- Amend IRPA to create a special expedited case determination process for persons entering Canada illegally from the U.S.
- Amend IRPA to deny Humanitarian and Compassionate grounds residency eligibility to persons that entered the country illegally and were thereafter denied refugee status.
- Begin process to review and modernize international agreements relating to refugees including improving international refugee processing centres.
- Develop and deploy a face recognition biometric 'bad guy' lookout system to interdict persons on defined security and criminality inadmissibility grounds with international sharing among Five Eyes and EU partners.
- Report annually on:
number of persons caught entering Canada illegally from the U.S.
number of persons caught entering U.S. illegally from Canada
numbers and % by country of origin
number and % who have filed refugee claims
number and % whose claims have been heard
number and % where decision rendered/claim accepted or rejected
number and % of cases under appeal (by party)
number and % of cases where warrant has been issued for non-appearance (by country)
number and % of removals
number of grants of residency permits on H&C grounds
costs attributed to illegal entry cases
delays in processing other cases of refugee claimants who have applied for status abroad or after entering Canada legally
number of persons (by country) receiving social assistance (by Province) after one year
number of persons (by country) charged with a criminal offence in the preceding year
These are challenging actions, but Canada needs to develop a strategy to modernize its immigration and refugee determination systems that goes beyond putting up heated tents and ignoring the truth.
– Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.