On July 24, 2018 Peter Edelmann appeared before the Standing Committee on Citizenship and Immigration (CIMM) as an expert witness to discuss the “Impact of Irregular Crossing of Canada’s Southern Border


Here are Peter’s opening remarks to the committee:

Je vous remercie de l’invitation de comparaître de nouveau devant le comité. Je suis avocat spécialisé dans les intersections entre le droit criminel, de la sécurité nationale et de l’immigration et du statut des réfugiés. Depuis plus de dix ans j’ai souvent traité des questions juridiques pertinentes à l’arrivée des réfugiés au Canada, tant du côté du droit migratoire que du côté des poursuites criminelles. Je suis content d’élaborer sur les questions que le comité considère les plus pertinentes, mais il me semblait utile lors de mes remarques introductives de faire un bref aperçu du contexte juridique des demandes d’asile au Canada et la légalité des actions de demandeurs d’asile.

When discussing the “legality” of refugee claims, it is important to understand the process of initiating a claim. Regardless of where a person makes a refugee claim – be it at a land-based port of entry, an airport or at an inland office, the claimant will invariably be issued a conditional departure order. The grounds for the order are a breach of the requirement under s.20(1)(a) of IRPA that a foreign national seeking to become a permanent resident have a permanent resident visa. The conditional departure order only comes into effect if the refugee claim is denied and never comes into effect for those who become protected persons. A person who makes a claim after crossing the border at a place other than a POE will be issued a departure order on the same grounds.

However, despite the grounds for inadmissibility underlying every refugee claim in Canada, I find it very 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 s.3(2) relating to refugees, most specifically in 3(2)(c) “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 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 is the use of fraudulent or improperly obtained documents in order to travel. Beyond the problem of not having a permanent resident visa, many refugees will not be able to obtain legitimate documents to come to Canada at all.

Lord Justice Simon Brown of the British House of Lords described this context in Ex parte Adimi in the following terms:

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 characterized 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 this context that the framers of the Refugee Convention included the principles in Article 31. Article 31 has been implemented into s.133 of the Act which states that a person who has made a refugee claim may not be charged in relation to a series of offences 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 the 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 the irregular crossings which are the topic of your meeting today. I think it is important to clearly outline why the conduct of the claimants at Roxham Rd. is being reproached, so there is clarity on the appropriate way to engage in the claim process set out in IRPA. It is not a contravention of IRPA to cross at a place other than a port of entry.

R27 (2) 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.

If they were informed of the requirement, it is likely that claimants would attend at a POE if they were permitted to make their claims there.

Section 11(1) of the Customs Act does create a requirement to enter only at a designated customs office. Although s.160 of the Customs Act creates a general offence for the contravention of s.11 it is very doubtful that a prosecution against a refugee claimant would or could be pursued without being in breach of Canada’s international obligations. It would 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 the Customs Act.
Moreover, if this is the only “illegal” aspect of the conduct, then it would remedied by simply getting into a boat in the United States and arriving in conformity with the Customs Act across one of the many lakes and waterways along the border. There seems to be little practical or policy basis for encouraging such strategies.

Je vais conclure avec une dernière observation. Que l’on veuille les qualifier de “légales” ou “illégales”, les stratégies déployées par les demandeurs d’asile à la frontière sud relèvent de la structure de l’accord du tiers pays sûr. Tel que noté par Prof. Lieu, il y a des raisons substantives pour remettre en question la désignation des Etats-Unis comme pays “sûr”. Mais il y a aussi des raisons pratiques de considérer la suspension de l’accord. Au lieu de créer une situation qui encourage des traversées irrégulières, il serait sans doute préférable que les demandeurs à la frontière sud puissent se présenter au points d’entrée de façon ouverte et ordonnée. Il est fort douteux que la désignation des États Unis ait un effet dissuasif pour les demandeurs d’asile, et il est bien plus probable qu’elle ne sert qu’à dissuader des demandes aux points d’entrée.