Thank you for inviting me to appear once again before the committee.
I am a lawyer who specializes in the arena where criminal law, national security, immigration, and refugee status intersect. For more than a decade, I have routinely handled legal issues involving the arrival of refugees in Canada as regards both migratory law and criminal prosecution.
I am glad to have the opportunity to speak at greater length about the issues deemed most important by the committee. I thought it helpful, however, to take some time during my opening remarks to briefly outline the legal context for refugee claims in Canada and the legality of the actions taken by refugee claimants.
When discussing the legality of refugee claims, it is important to understand the process of initiating a refugee claim. Regardless of where a person makes a refugee claim, be it at a land-based port of entry, an airport, an inland office, or a marine port, the claimant will invariably be issued a conditional departure order. It is important to understand the grounds on which that order is made—a breach of the requirement under paragraph 20(1)(a) of IRPA that a foreign national seeking to become a permanent resident have a permanent resident visa.
The conditional departure order is issued to every claimant, regardless of where they make their claim. It comes into effect only if the refugee claim is denied, and it never comes into effect for people who become protected persons.
A person who makes a claim after crossing the border at a place other than a port of entry will be issued a departure order in the same way: in other words, on the same grounds, for the same breach of the act.
Despite the grounds for inadmissibility underlying every refugee claim in Canada, I find it difficult to frame this as illegality, given Canada's obligations to refugees, both internationally and under the charter. Significant portions of IRPA are dedicated to refugee claims, starting with the objectives set out in subsection 3(2) relating to refugees, specifically paragraph 3(2)(c), which sets out the following objective:
to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution;
The bulk of part 2 of the act addresses the process and procedures for making refugee claims in Canada, and section 99 specifically foresees that a refugee claim may be made inside Canada. I am unable to understand why the use of these procedures, in good faith, could be framed as illegal, even if it invariably results in a finding of inadmissibility and the issuance of a conditional departure order.
The arrival of refugees on Canada's shores will often involve other apparent contraventions of the laws of Canada and other countries. One of the most common contraventions we see is the use of fraudulent or improperly obtained documents in order to travel. Beyond the problem of not having permanent resident visas, many refugees aren't able to obtain legitimate documents to come to Canada at all.
The British House of Lords described this problem in the case of Adimi in the following terms. These are the words of Lord Justice Simon Brown:
The problems facing refugees in their quest for asylum need little emphasis. Prominent amongst them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterised by subterfuge and false papers. As was stated in a 1950 Memorandum from the UN Secretary-General:
“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge.”
It is precisely in the context of this that the framers of the refugee convention included the principles in article 31, which, as you've heard today, have been implemented into section 133 of the act, which states that a person who has made a refugee claim in Canada may not be charged in relation to a series of events “in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.”
This is the equivalent in criminal law of the conditional departure orders that are issued in the context of immigration law. There are no legal consequences or penalties imposed in Canadian law for irregular arrival against individuals found to be genuine refugees.
This brings me to the question of irregular crossings, which is the topic of your meeting today. I think it is important to clearly outline why the conduct of claimants at places like Roxham Road is being reproached, so there is clarity on the appropriate way to engage in the claim process set out in IRPA.
I would like to emphasize that it is not a contravention of IRPA to cross at a place other than a port of entry. Subsection 27(2) of the regulations clearly states:
Unless these Regulations provide otherwise, a person who seeks to enter Canada at a place other than a port of entry must appear without delay for examination at the port of entry that is nearest to that place.
The crossing itself is not illegal. Where we talk about illegality or where there is a contravention is under the Customs Act. Subsection 11(1) of the Customs Act does create a requirement to enter only at a designated customs office. Although section 160 of the Customs Act creates a general offence for the contravention of section 11, it is very doubtful that prosecution against a refugee claimant would or could be pursued without being in breach of both the charter and Canada's international obligations.
It would also be a rather odd state of affairs if we were to refer to refugee claims made in conformity with the process set out in IRPA as illegal only because of a breach of customs regulations. IRPA is designed to regulate the entry of people, while the Customs Act deals with goods. Refugee claimants entering at places other than a port of entry are doing so in order to make a refugee claim, rarely if ever with any intention to undermine the goals of the Customs Act.
Moreover, if this is the only illegal aspect of the conduct, it can easily be remedied by claimants simply crossing through waterways and lakes and arriving at designated customs points. I don't think anybody at this table wants to see people starting to cross waterways, and I don't think I need to elaborate on the problems that would arise out of that.
I'd like to conclude my remarks by sharing one last observation.
Whether you wish to qualify refugee claimants crossing into Canada at the country's southern border as legal or illegal, the strategies they are using stem from the safe third country agreement.
As Professor Liew will undoubtedly point out, there is good reason not only to question the U.S.'s designation as a safe third country, but also to consider suspending the agreement altogether from a practical standpoint. Rather than creating a situation that encourages irregular crossings, it would certainly be preferable for refugee claimants at Canada's southern border to enter at ports of entry in an open and orderly fashion.
It is highly doubtful that the U.S.'s designation as a safe third country will deter refugee claimants. It is much more likely that the designation will merely deter them from making their claim at a port of entry.
Thank you for listening. I would be happy to answer your questions.