Can illegal border crossers be charged? Canadian law says no

Refugees crossing the border. Photo from The Canadian Press

Some Conservative MPs are calling for charges to be laid against asylum seekers entering Canada from the U.S. at places other than official border crossings. But under existing Canadian law, that may not be possible even if the Liberal government or the RCMP decided to shift their approach.

“International and Canadian law protect the right of refugees to flee to safety, including if necessary by entering a country in violation of immigration laws,” Janet Dench, spokeswoman for the Canadian Council for Refugees, told Yahoo Canada News. “This is based on the fundamental right, as expressed in article 14 of the Universal Declaration of Human Rights, to seek asylum from persecution in other countries.”

Asylum seekers entering Canada from the United States should be charged, Conservative immigration critic Michelle Rempel posted on Facebook on Friday.

“As many leaders across the political spectrum have noted, the U.S. is one of the world’s most vibrant democracies,” Rempel posted. “If the Liberals believe this has changed, and have such legitimate concern with that as to interpret Article 31 in that light, they need to let Canadians know why this is so.”

Rempel is not the only Conservative to call for asylum seekers who come from the United States to be charged or deported back across the border. During the recent Tory leadership debate in Edmonton, Conservative leadership candidate Kellie Leitch said people crossing into Canada irregularly should be “detained, questioned, and sent back to the United States immediately.”

Increased border crossings

According to CBC News, at least 435 people illegally crossed into Canada in Manitoba, Quebec and B.C. in the first seven weeks of 2017.

Under the Canada-U.S. Safe Third Country Agreement, people must apply for asylum in the first country where they arrive, unless an immediate family member lives in the other country.

Asylum seekers who enter outside official border stations are arrested by the RCMP or local police. They can stay on Canadian soil while the Canadian Border Services Agency performs a criminal background check to determine if they are eligible for refugee status. When someone is deemed ineligible, a removal order is issued and the person is released on the condition of reporting for further removal actions.

So far, none of the border crossers have been charged for illegal entry and all have been transferred to border services, the Globe and Mail reported last week.

Under Canadian law, it is illegal to attempt to get into Canada at places outside an official border crossing. However, Section 133 of the Immigrant and Refugee Protection Act makes an exception for asylum seekers.

“A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred,” Section 133 of the IRPA reads.

However, those who enter the country illegally and don’t make an asylum claim are not covered by Section 133 of the IRPA and could be charged, Dench told Yahoo Canada News.