Michael Barutciski, who is a lawyer and faculty member of Glendon College (York University), as well as associate editor of Global Brief magazine, has written, in he National Post, a useful explanation of some of the ins and outs of Canada’s border policies and he offers a proposal to fix one problem.
“All reasonable Canadians,” he says, and I agree “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,” he explains, “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.” But hasn’t Prime Minister Trudeau said that the Charter obliges us to respect the provisions of a UN convention on refugees? Isn’t that why we have to do what we’re doing?
But Professor Barutciski explains that “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.” But didn’t the minister and officials say that they couldn’t be sent back to the USA because they weren’t “removal ready?”
But Michael Barutciski has an intriguing proposal: “In keeping with the objectives of the Safe Third Country Agreement,” he says, “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.” Now it seems important to note that this would require the Trudeau and Trump governments to meet and agree to a procedural change. It may be that the US government is quite happy to iffload a bunch of refugees it doesn’t want on to Canada.
“Out of respect for those refugee claimants trying to entering legally, as well as Canadians who ultimately pay the bill for maintaining a fair refugee system,” he concludes, “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.“
I’m not a lawyer but this seems like a useful proposal to me.