What philosophic nitpicking and seeming nonsense! Is it? A hem forms the border of a skirt. But it does not form a skirt’s boundary. The border sharply defines the difference between the edge of the skirt and the legs of a woman. We have high borders or hems for mini-skirts and low-borders or hems for maxis. But we do not have high or low boundaries of skirts. A boundary ties together and unites. A border separates and divides. Donald Trump is unboundaried. But he is obsessed with strong borders.

His capacity to lie recognizes no limits. A boundary provides an abstract limitation to a sphere of activity. A border is concrete, literally no more concrete than when a wall is used as the dividing line. A border forms the outer limit to define a boundary. However, a border has a different role even when the line is exactly the same demarcation.

This week I received an email from Josh Biziak of the Broadbent Foundation asking me to sign a petition requesting that the Liberal Government of Canada rescind the safe third country agreement (SCTA) between the U.S. and Canada. Provoked by the Trump administration practice of separating children from their parents and incarcerating them in separate facilities, Amanda DiPaola, an Associate Professor at St. Thomas University, in an op-ed in The Globe and Mail earlier this week urged the same thing.

This petition was referred to me by two readers who asked for my input.  The point of the petition seemed to be political – to send a message that the U.S. is not a safe country. Why? Because it incarcerates children who accompany their parents. No. Because America separated those children from their parents and incarcerated them in a different facility, often hundreds or even thousands of miles away. The Department of Homeland Security does not even tell most of the parents where their children are or how they can be reached.

The SCTA between Canada and the U.S., as part of the so-called U.S.-Canada Smart Border Action Plan introduced in December 2002 and first implemented two years later, is administered by the Canada Border Services Agency, CBSA. (Note: not the Canada Boundary Services Agency.) The law requires a refugee asylum claimant, with some exceptions (where the best interest of a child is involved, in cases of unaccompanied minors, or where family reunification is at issue), to request asylum first in the U.S. The U.S. is the only country Canada has declared to be a Safe Third Country on the grounds that America has signed both the Refugee and the anti-Torture Conventions and treats asylum claimants in accordance with UNHCR principles. The real reason that America is the only Safe Third Country is because all refugee claimants crossing a land border come via the U.S.

But the law also does a second thing. If an asylum claimant arrives at a Canadian border and does not fall within any of the exceptions, that individual will be sent back to America to wait until Canada is ready to hear the claim. And that time may be too late. The American government may have detained or deported the potential refugee claimant. That is why these claimants cross our border with the U.S. at unmanned places. Then they can apply for refugee protection within Canada and not at the border. Even when the border is at an airport, it is a line of demarcation between the legal political authorities of the two countries; it is not a boundary. In such cases, the SCTA acts to channel asylum claimants to cross illegally into Canada.

That, however, is not the ostensible reason that the Broadbent Institute has asked me to sign the petition. Josh Biziak wants to send a message at this time that Canadians no longer consider America to be a safe third country because the U.S. no longer meets the required standards protecting human rights and, presumably, because the system of separation of powers enshrined by the constitution, in particular, Article I, are no longer in working order.

George F. Will, the erudite conservative writer, excoriated Congressional Republicans for betraying their responsibilities under the Constitution. He declared that this cowering congressional congress had allowed those Constitutional requirements to become dormant, letting its muscular powers atrophy through sloth and timidity by making common cause with the Vesuvius of mendacities. Republican congress members had become the president’s poodles motivated by abject careerism as they prostrated themselves to placate this would-be authoritarian and become his toadies in return for lower taxes.

Though widely reported as 2,300 incarcerated, the actual number of detained children separated from their parents – including not only parents who crossed the border illegally (a misdemeanor at worst), but also those who entered the U.S. at a legal crossing and claimed refugee status, is much larger. Those taken elsewhere to be interned in an American facility, including unaccompanied minors, exceeds 14,000. American law provides that minors cannot be interned for more than 20 days. Since May, the Trump government and its Department of Justice have snubbed their noses at established American law, ostensibly in the name of defending the sanctity of American law.

Why? Not because the U.S. government wants to punish the children, though that is what it is doing by the policy, but because it wants to use the action of separation as a way of deterring new arrivals. After all, the numbers crossing the border now averages 50,000 per month. The new so-called Executive Order only postpones the separation of children from parents and does nothing to reunite children with their parents or release unaccompanied minors. The U.S. is indeed engaged in cruel and unusual punishment of innocent children.

Whether their parents were or were not irresponsible in escaping the violent conditions in Honduras, El Salvador and Guatemala in bringing their children to the U.S. is beside the point, even though it is almost self-evident that these immigrants from Central America made the trek in most cases to gain a better and more secure life for those children. This issue is unequivocally a red herring. The problem is not whether some of the parents are guilty of a misdemeanor, but whether the U.S. blatantly disregards human rights norms and breaks its own laws, traumatizing children in the process, including some infants still being breastfed.

The argument is that Canada cannot allow economic self-interest and the troubling trade negotiations over NAFTA to undermine morality and law. Canada cannot allow the motivation to stand up to American bullying on a matter of such important principle. Heartbreaking pictures and the sounds of inconsolable children crying must not only move our hearts but our policies as well. Further, the latest imbroglio over whimsical and self-destructive American policies dates back much earlier and even precedes the totally insensitive actions of the current U.S. government.

At a court hearing scheduled for January, a Canadian judge will hear the charge brought against the Canadian government over the SCTA by the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International. The U.S. has for a very long time not been a Safe Third Country, not only because of its detention policy, not only because asylum claimants in the U.S. have far less access to an experienced immigration lawyer who can help them put their case forward, but because, under the policy of “expedited removal,” asylum seekers have been sent back to Mexico without a hearing and without taking them to court for their misdemeanor offences. The complainants can not only show that very few of these cases involve members of murderous gangs, smugglers, rapists and drug cartel operatives, contrary to the presidential propaganda, but that, certainly in the case of Guatemala refugee claimants, very few claimants are successful in America whereas in Canada, the majority of claims are accepted. In the last three years, about two-thirds of asylum seekers in Canada received positive decisions. (For a primer on Central American migration to Canada and the U.S., read my colleague Allan Simmons’ article on “Central Americans in Canada.”)

https://ir.lib.uwo.ca/cgi/viewcontent.cgi?referer=https://ca.search.yahoo.com/&httpsredir=1&article=1003&context=mer

The Trump administration not only uses and abuses Congress and walks all over standing moral and legal norms, but has assumed the role of the judiciary in declaring that victims of gang violence and domestic abuse cannot be grounds for a refugee claim. Canadians cannot be comforted by the fact that claimants from Central America have fallen from 2,479 in April to 1,775 crossing into Quebec, the major entry point for those who cross into Canada illegally, even though temporary protected status in the U.S. has been removed from Salvadorans, Hondurans and Haitians. Canada only holds children in detention centres for short periods of time and never by deliberately separating children from their parents to make a political point.

Has the time come, is this the Alan Kurdi moment, when Canadians awake from their indifferent stupor and say enough is enough? Do we declare the Safe Third Country dead? Was it enough that Prime Minister Justin Trudeau condemned the U.S. separation policies?

We can reject the American policies. We can ask the Canadian government to change the STCA, as Canadian lawyers urged the Canadian government to do over twenty months ago following Trump’s ill-advised move to ban members of specifically-named countries from entry into the U.S. Trump Executive Order 13769 banned travel from seven African and Middle East countries and suspended the U.S. Refugee Admissions Program. That proposition demanding an end to SCTA was pushed by the Canadian Civil Liberties Association, the Canadian Association of Refugee Lawyers, the Association québécoise des avocats en droit de l’immigration, the British Columbia Civil Liberties Association, 200 law professors and both the Canadian Council for Refugees and Amnesty International. In spite of concurrence by all three opposition parties, the Canadian government chose not to act. It was American law that intervened to gut the Trump initiative.

It must be noted that Canada receives less than 1,700  asylum claimants per month on average from the U.S., even during this time of extreme distress, compared to the 50,000 received per month on the U.S. southern border. Our actions should not be determined by self-righteousness. Nor by revenge to score moral points against the U.S. for its punitive and unjust tariffs. Nor should we be motivated by contempt for America’s king of mendacity, Donald Trump. I think we should be motivated by the following in order of priority:

1.    What is best for the refugee claimants;

2.    What is best for the rule of law.

3.    What is best for the anti-Trump polity in the U.S. in the war against the Trump administration

I do not think what Canadians say or do will have much, if any, effect on the Trump regime, perhaps only make Trump more contemptuous in his treatment of Canada. He is and will remain a lying bully. What happens in America now depends on the American polity. There is a very important election in just over four months. Donald Trump in his Nevada speech yesterday “embraced hard-line immigration policies as a centerpiece of the Republican Party’s midterm campaign strategy.” (Washington Post) “Strong borders; no crime.” Yesterday, Sen. Dean Heller of Nevada, currently running for re-election and reputedly a moderate on immigration policy, continued to display his lack of backbone and instead demonstrate his obsequious bowing before Trump triumphalism in contrast to his 2016 claims that Trump denigrated human beings.

Trump needs to be penned in and a defensive border put around him that will squeeze him into inaction and possible resignation. He is incapable of being bound by moral norms. His professed concern for the immigrant children is the ultimate in insincerity and self-contradiction. His policies have been upturned before. However, for the first time during his presidency, he has been forced to reverse course, even if that reversal was as heartless as the original policy.

The Trump regime is a menace to refugees everywhere, to Americans, to Canadians and to the rest of the world. If I thought signing the petition would help refugees, if I thought that it would change American government behaviour just one whit, I would sign. However, no matter how just I believe the petition to be, even long before the Trump administration took office, the most important goal at this key turning point in the American presidency is placing the greatest effort on building a wall around Trump’s power while avoiding antagonizing and stirring up the irrational fear of immigrants that Trump has stoked among the American populace.

It is a difficult and subtle balancing act. While our hearts are bleeding, it is even more important to focus on a goal. Unless I become convinced that the repeal of the STCA, as much as it may benefit refugees over the long term, will help put Trump and his cohorts behind a high and strong wall, I opt for strategic thinking over moral purity.