Our hands aren’t tied on the border

All reasonable Canadians would agree that foreigners claiming refugee status at the land border should be treated fairly. That these migrants are arriving from the only country considered “safe” by Canadian law obviously influences what constitutes “fair” treatment in this case.

The designation of the United States as a “safe third country” has profound consequences in determining Canada’s exact obligations. Unfortunately, this aspect of the current border situation has been misrepresented by Immigration Minister Ahmed Hussen and senior bureaucrats who insist the Charter of Rights and Freedoms automatically grants a hearing to refugee claimants. Canadians are understandably confused by the government’s border policy because it is being justified on the basis of an inaccurate legal claim.

Anyone who reads the Charter will see that it does not mention anything about hearings for refugee claimants. Any such right would have to be included indirectly to avoid a potential violation of the Charter’s protection of “life, liberty and security” (section 7). The Supreme Court dealt with this issue in its landmark 1985 Singh ruling and it established several principles relevant to the current situation.

While refugee claimants are covered by the Charter as soon as they arrive at the Canadian border, the court explained that “procedural fairness may demand different things in different contexts.” Contrary to what has been assumed generally by the legal community, the country’s highest court did not stipulate that all refugee claimants have a right to a hearing once they are on Canadian soil. At Quebec’s Lacolle Port of Entry, for example, “due process” currently means immediate return to the U.S. in accordance with the Safe Third Country Agreement.

The Singh case concerned a potential Charter violation because the Sikh claimants risked being sent to India where they feared persecution (during a difficult period in the early 1980s). Their section 7 rights were at stake, so the old refugee status determination procedure was considered insufficient and the Supreme Court ruled they were entitled to a hearing.

The problem with claimants at illegal crossings like Roxham Road is that they are arriving from the U.S. Stopping or returning them at the border would not result in a potential Charter violation because the U.S. is deemed safe, so the reasoning behind Singh cannot apply. Journalists and lawyers who accept uncritically the government’s position are forgetting why a hearing was granted in the first place (i.e. potential Charter violation). There cannot be a Charter violation if someone is sent to a safe place.

In keeping with the objectives of the Safe Third Country Agreement, the logical step would be to instruct border guards to transfer to the Lacolle Port of Entry all claimants they arrest at Roxham Road. The latter would then be returned to the U.S. just like most claimants who arrive directly at Lacolle. Given that the Agreement is a treaty between Canada and the U.S. that addresses the administrative collaboration when border guards deal with refugee claimants, it cannot replace the actual Charter obligations that bind Canadian officials. To keep the integrated border co-operation running smoothly, an amendment to this treaty would be required to clarify that it continues to apply if border guards witness a claimant crossing illegally from the U.S. (and vice-versa). This would be the simplest way to eliminate the Agreement’s major loophole that incentivizes illegal entry.

Out of respect for those refugee claimants trying to enter legally, as well as Canadians who ultimately pay the bill for maintaining a fair refugee system, our leaders should not pretend their hands are tied by the Charter when it comes to dealing with notorious crossings like Roxham Road. Concrete steps to amend the Safe Third Country Agreement are needed. Otherwise, the symbolism of Roxham Road, and particularly the impression the border is not enforced rigorously, risks undermining the public support that is crucial for refugee protection in the long term. Indeed, recent polls are suggesting the country’s pro-immigration consensus could be jeopardized if the government maintains its current position on border refugee claimants. Michael Barutciski is a lawyer and faculty member of Glendon College (York University), as well as associate editor of Global Brief magazine. He has taught refugee law/policy on several continents.