Canadian Federal Election Could Close “Legal Loophole” in Canada–United States Safe Third Country Agreement

Canadian Federal Election Could Close “Legal Loophole” in Canada–United States Safe Third Country Agreement

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),

[ii] Andy Blatchford, Scheer Vows to Close Asylum ‘Loophole’, Unveils Immigration Plan at Roxham Road, Global News (Oct. 9, 2019),

[iii] Id.

[iv] Canada-U.S. 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),

[vii] Id.; Laura Marchand, No Easy Fix for Roxham Road Crossings, says Refugee Advocate, CBC News (Oct. 2, 2019),

[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.