Is Canada liable? To whom?

Teresa Wright, of the Canadian Press, says, in an article published in the Globe and Mail, that “Refugee advocates say Canada could be in legal hot water if the United States deports asylum seekers turned away from Canada as part of a broader deal with the U.S. to close the border to all but non-essential traffic … [and] … On Monday, the U.S. announced a 30-day agreement with both Canada and Mexico that includes immediately returning any migrants without legal status to the countries from which they arrived, or to their countries of origin if that isn’t possible, rather than holding them at U.S. facilities.

Prime Minister Trudeau,” the article explains, “said last week anyone crossing between the two countries on foot to claim asylum will be turned away as part of the temporary border deal aimed at combating COVID-19 … [but] … This has raised questions about whether refugees turned back by Canada would be returned to their country of origin.

Ms Wright quotes Alex Neve, Secretary-General of Amnesty International Canada, who says that “the federal government should be concerned about the legal culpability such a move could place upon Canada … [because] … Canada’s international obligations regarding refugees include a commitment to “non-refoulement,” which means not sending refugees back to countries where they could face torture or 180108_yl8jv_rci-m-neve-head_sn300persecution … [thus] … If a refugee turned away by Canada is later deported to a country where they are harmed, Canada could be considered complicit in this outcome and therefore legally liable, Neve said.” Mr Neve explained that ““The other end of non-refoulement for a refugee is the possibility of death, torture, rape, arbitrary imprisonment. We cannot close our eyes to that, not only morally, but legally …[adding that] … It is entirely possible that if someone was subject to refoulement having been impacted by this border accord that we negotiated, that we would be legally liable. We would be complicit in what happened to them.”

There are, literally, dozens of conventions and treaties and acts and declarations that provide some legal protection to various sorts of migrants. The Canadian Charter of Rights provides the full protection of our Constitution to anyone who is in Canada, no matter how they got here. Thus when a migrant enters Canada illegally, i.e. at other than an approved border crossing site, all (s)he needs do is to claim asylum (and there are social media sites that explain how to do this) and (s)he is no longer “illegal,” she is now a refugee claimant who is an ‘irregular” migrant. Evidence (the link just above) suggests that as many as 60% of these irregular migrants spent only five days in the USA, in other words, they entered the USA, often legally, with the sole intention of going to Canada to claim refugee status.

I have no doubt that advocacy groups, like Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches will be able to find a migrant who has been expelled from Canada and deported by the United States and will bring her or his case to a Canadian court. I suspect that good lawyers will have little difficulty in making a case, in Canadian courtrooms, that Canada has violated the Charter rights of one irregular migrant and, by extension, of most of them. The Global Compact on Migration might end up looking pretty tame compared to what some Canadian judges might decide.

Now is the time to renegotiate, strengthen and renew the Safe Third Country Agreement Screen Shot 2020-03-29 at 07.56.26with the USA including making it apply to the entire country and its borders so that the rules apply to everyone who enters Canada, by any means, even parachute, from any source in the USA. We may not like the way President Donald Trump treats migrants and even refugees, but we must all, even Alex Neve, acknowledge that the USA remains a country that lives by the rule of law and that obeys its own laws. We must trust American judges to apply American laws fairly and properly, no matter what President Trump might say.

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