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Page 12 September 24, 2018 • Law timeS www.lawtimesnews.com of the rule of law, because there aren't any provisions that justify the suspension of the act on cer- tain days," she says. "There's an arbitrariness to it that is worrying. What's to stop them going down to one day a week?" She says she would have liked to see the project communicated more clearly to the public. Although lawyers in the field were warned in advance, Gerami says federal govern- ment websites remain silent on the policy. "Typically, with projects like this, you get a backgrounder ex- plaining what's happening and why. I'm baff led that there hasn't been anything like that for this project," she says. "If you're limiting people's rights and access to services un- der the act, you need to give no- tice and justify it." Kitchener, Ont. immigration lawyer Jennifer Roggemann says f lagpoling has always had an element of risk attached for Ca- nadian residents due to the po- tential contact with U.S. border authorities, as well as the pos- sibility a CBSA officer could re- fuse their entry to Canada with the same status. "With f lagpoling, they're do- ing an immigration officer's work, which is something they don't always feel is within their mandate," she says. "What clients want is an as- surance from you about what they can expect, but the pilot has made it much more difficult to do that. "If your status in Canada is not secure or you don't have a right to enter the U.S., then you've got to do f lagpoling really carefully," Roggemann adds. To maximize the chances of success at border posts included in the pilot project, she advises clients to stay overnight in the U.S. if they are able, rather than turning around immediately. She adds that the best prac- tice is to show up as early as pos- sible on the days designated for f lagpoling processing. However, if weekday travel is out of the question or there are concerns about being turned away at the Niagara crossing, Roggemann says she will di- rect clients to the more distant Windsor-Detroit land border, which is not yet included among pilot locations. LT cause there is a great deal of evi- dence, but we have tried to be as thorough as possible," she says. Rehaag claims the prosecu- tion of refugee claimants for ir- regular arrival in the U.S. is a breach of international law. "If we send people to the U.S. in those circumstances, we are complicit in that breach," he says. In addition, Rehaag says, he's concerned by recent policy pronouncements from U.S. At- torney General Jeff Sessions that make it more difficult for people f leeing "private criminal activ- ity," including gang violence or domestic abuse, to be granted asylum in the U.S. "When we send these people back to the U.S., we're effectively sending them to a country where we know they will be deported to face persecution, even though they would meet the refugee def- inition in Canada," he says. But Michael Barutciski, an associate professor at York Uni- versity's Glendon campus, who has expertise in refugee law and policy, is not so convinced the challenge will succeed. "I think the claim is very du- bious," he says. "I'll be surprised if it suc- ceeds, although it is possible." According to Barutciski, the U.S. system for assessing refugee status has improved since the 1980s, when he believes it was tainted by politics, and the U.S. does not have to provide equal protection to Canada in order to be considered a safe country. In fact, he says, Canadian law demands only that a safe coun- try's "laws, practices and human rights record" indicate compli- ance with the United Nations' conventions on refugees and against torture. "If we want the standard to be that the U.S. system is equal to Canada's, then we can put that into law, but it's going to make FOCUS Continued from page 10 Continued from page 11 More than 12,000 asylum claims made in Canada this year for a tough discussion in Parlia- ment," Barutciski says. "If we're saying that the sys- tem of the U.N.'s biggest funder and arguably most important country in terms of refugee re- settlement is generally unfair, then that's a big claim to make." Toronto immigration lawyer Aris Daghighian says he would rather see the federal govern- ment suspend or withdraw from the Safe Third Country Agree- ment altogether as opposed to continuing with a defence of it in court. Such an approach, he says, would eliminate the need for ir- regular border crossings made by an increasing number of refu- gee claimants. In 2018 alone, more than 12,000 asylum claims have been made in Canada following entry at unofficial border crossings, tak- ing advantage of the Safe Third Country Agreement's application at official ports of entry only. "It would be a lot more orderly and a lot less resource intensive if the political decision was taken to get rid of the agreement," says Daghighian, an associate at im- migration law boutique Green and Spiegel LLP. Rehaag has led his own effort on the subject, recruiting more than 200 professors from across the country to lobby Minister of Immigration, Refugees and Cit- izenship Ahmed Hussen to ex- ercise Canada's right to suspend the agreement for three months pending a full review. "The only real plausible argu- ment against either suspending the agreement or withdraw- ing from it is concern about the foreign policy impact and how the U.S. president would react, but my sense is that the current administration would have ab- solutely no problem with asy- lum seekers leaving the U.S. and coming to Canada," he says. "In fact, they might be quite pleased. But it is unpredictable." 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