By Scott May

On September 11, 2019, Governor General Julie Payette dissolved the Canadian Parliament on the advice of Prime Minister Justin Trudeau, initiating a six-week political sprint to the federal election on October 21, when Canadians from Québec to British Columbia will cast their ballots to decide which party – or coalition of parties – will govern.[i] Among the issues at stake is the fate of what Conservative Party leader Andrew Scheer has characterized as a legal “loophole” that he claims “has enabled tens of thousands of asylum-seekers to cross north into Canada and claim refugee status.”[ii] Scheer has pledged to close this loophole, but doing so would require renegotiation of a treaty with the United States known as the Safe Third Country Agreement (“STCA”).[iii]

Under the STCA, which was signed in 2002, asylum-seekers must request refugee protection in the first “safe” country ­in which they arrive.[iv] However, the STCA applies only to refugee claimants who enter Canada from the U.S. at official land border crossings.[v] Increasing fear among asylum-seekers in the U.S. since the election of President Donald Trump has prompted thousands to cross into Canada from the U.S. irregularly and request refugee protection.[vi] Many of these people arrive in Québec via Roxham Road, where they are apprehended by the Royal Canadian Mounted Police.[vii]

Canadian politicians are sharply divided on how to address the STCA. One conservative has suggested designating the entire Canada-U.S. border as an “official port of entry.”[viii] Conversely, the New Democratic Party would suspend the STCA and permit asylum-seekers to request refugee protection at official ports of entry.[ix] Article 10 of the STCA provides that either country can terminate the agreement upon six months written notice, or suspend the agreement for renewable three-month increments upon written notice.[x] In the meantime, an inexplicable quirk of a 2002 treaty continues to be the subject of intense debate in Canadian politics and a source of uncertainty for thousands of concerned asylum-seekers in North America.

[i] Alexander Panetta, 5 Steps to Understanding Canada’s Election, Politico (Sept. 16, 2019), https://www.politico.com/story/2019/09/16/canada-elections-parliament-trudeau-scheer-1496123.

[ii] Andy Blatchford, Scheer Vows to Close Asylum ‘Loophole’, Unveils Immigration Plan at Roxham Road, Global News (Oct. 9, 2019), https://globalnews.ca/news/6010451/scheer-vows-to-close-asylum-loophole-unveils-immigration-plan-at-roxham-road-crossing.

[iii] Id.

[iv] Canada-U.S. Safe Third Country Agreement, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement (last visited Oct. 18, 2019).

[v] Id.; Safe Third County Agreement, Can.-U.S., art. IV, Dec. 5, 2002, C.T.S. 2004/2 (providing “the Party of the country of last presence shall examine . . . the refugee status claim of any person who arrives at a land border port of entry . . . and makes a refugee status claim.”) (emphasis added).

[vi] Emma Jacobs, Canada’s Safe 3rd Country Agreement With The U.S. Draws Criticism, National Public Radio (Aug. 6, 2019), https://www.npr.org/2019/08/06/747069518/canadas-safe-3rd-country-agreement-with-the-u-s-draws-criticism.

[vii] Id.; Laura Marchand, No Easy Fix for Roxham Road Crossings, says Refugee Advocate, CBC News (Oct. 2, 2019), https://www.cbc.ca/news/canada/montreal/no-easy-fix-for-roxham-road-crossings-says-refugee-advocate.

[viii] See Canadian Press, MP Rempel Wants Entire Canadian Border Designated Official Port of Entry, CBC News (Apr. 19, 2019),

[ix] Marchand, supra note 7.

[x] Safe Third County Agreement, Can.-U.S., art. X, Dec. 5, 2002, C.T.S. 2004/2.