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A solution to Canada’s refugee surge is no easy feat

The Liberal government's policy on asylum seekers crossing the U.S. border is incoherent, and now the Conservatives are fighting that incoherence with some nonsense of their own.

The mess at the border, with asylum seekers entering Canada from the United States by crossing fields in Manitoba or jumping ditches in Quebec, is a serious dilemma, but a complex one, and easy political rhetoric won't solve it.

Don't buy the Liberal government's bland assurances that there's nothing to see here. Or the Conservatives' empty assertions that it's a simple problem of the government not enforcing the law. The problem is that the government is enforcing the law, and there is still something worrisome going on.

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Globe editorial: Is Canada ready for Donald Trump's refugee crisis?

Read more: What's going on with Trump's immigration ban? A Canadian guide

Related: Asylum seekers' cold crossings to Canada: A guide to the saga so far

At the moment, Canada has a don't ask, don't tell policy for asylum seekers who cross the U.S. border: If they don't ask to come in, we won't tell them to go home.

That loophole has existed for 13 years but more people are using it now – as more asylum seekers in the U.S., worried that President Donald Trump's policies will mean they can't stay, seek refuge in Canada. And the bigger numbers make it a much bigger problem.

It used to be easy for asylum seekers to show up at a Canadian border post and claim refugee status, but after 9/11, Ottawa and Washington worked out a series of new border-management measures. That included a Safe Third Country Agreement that stipulated that people who went to a land-border entry post to seek asylum would, with a few exceptions, be turned back to make their asylum claim in the country they were already in.

But the treaty applies only to the official border crossings, where Canada and the U.S. have buildings and border agents. It doesn't apply to people who make a refugee claim "inland," in Winnipeg or Montreal or somewhere else inside Canada – even if they came to Canada via the U.S.

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That's what leads to the loophole: People who cross the border by walking across a Manitoba farmer's field could bump into an RCMP officer, but still make their asylum claim – legally, they're not at a border crossing, they're in Canada.

Tony Clement, the Conservative public safety critic, argues the problem is simple: "We should be applying the law." Unfortunately, Mr. Clement wouldn't say what that means. Does he want police to turn asylum seekers back at the border? He wouldn't say.

The problem is RCMP officers can't turn those people back. When they're approaching the Canadian border, they are still in the U.S., and the Mounties don't have jurisdiction. Once they cross, they're in Canada, and the RCMP can't return them. The RCMP can arrest them, and charge them with an illegal border crossing, and sometimes people do spend a few months in jail – but those people can still claim refugee status, and remain in Canada while they wait for a hearing.

Now, this old loophole is growing. Refugees fear they won't be allowed to stay in Mr. Trump's America, with some reason: Mr. Trump signed an executive order suspending the processing of refugee claims, though it has been frozen temporarily by a judge.

The increasing numbers of irregular crossings creates the perception the government can't control the border. For the Liberals, that's a major political liability. And it has an effect: It spreads the word that the loophole works, which could lead to far more people crossing the border irregularly. The Liberals could try to deter with a threat to jail all of them, but that means locking up families – note Mr. Clement wasn't willing to suggest that.

The government could simply scrap the Safe Third Country Agreement, so asylum seekers could drive to regular border posts. Refugee groups argue the government should, because U.S. can no longer be considered a safe country for refugees.

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But that's not so simple. It might mean a political fight with the Trump administration. It would certainly lead to far more asylum seekers at the border.

The Safe Third Country Agreement slashed the numbers of claims after it went into effect in 2004. If it were suspended now, there would be a spike. That would strain Canada's refugee processing system. It might strain political support for accepting refugees. Mr. Trudeau's Liberals want to appear welcoming, but don't really want big numbers. So far, the Liberals are trying to buy time, hoping it will go away.

Video: Canada to take in 1,200 mostly Yazidi refugees (The Canadian Press)
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About the Author
Chief political writer

Campbell Clark has been a political writer in The Globe and Mail’s Ottawa bureau since 2000. Before that he worked for The Montreal Gazette and the National Post. He writes about Canadian politics and foreign policy. More

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