Will it be a Priority after the election?

On October 21st, Canadians will get a ‘new’ federal Government – although it is far from clear which party will be in charge once the votes are counted. But whatever the outcome, one thing that is clear, is that addressing the continuing security gaps at our border and effectively dealing with the consequences that result from them, is one issue that needs urgent attention.

Will fixing gaps in Border policy be a priority after the election?

Many of these are longstanding issues, while others have arisen since 2017 when the number of persons entering Canada illegally from the U.S. between designated ports of entry began to dramatically increase. This latter issue is part of a larger ‘mass migration’ phenomena, which Western countries around the world are also experiencing – but, in Canada, it is complicated by the Canada-U.S. Safe Third Country Agreement from 2004 which, ironically, was designed to prevent the ‘asylum shopping’ it now facilitates.

This situation is also exacerbated by the crackdown by the Trump administration on non-citizen criminals in the U.S. who may decide to head north to our largely open border to avoid removal. Another challenge arising from the current situation is the cross-border smuggling of guns and opiod drugs into Canada, which is producing significant negative consequences for Canadians. As has been noted, “What gets through our border ends up on our streets.”  

Out-of-date enforcement mandates and insufficient staffing in Canada have led to alarming failures related to proper screening of cargo being imported and exported at our major seaports in Montreal and Delta B.C. Although these deficiencies have largely been ignored by the Trudeau government, they must not be allowed to continue.

As always, identifying a problem is not enough. To properly address a safety and/or security gap, it is essential to understand why the problem exists and what measures are required to fix it.

In light of the continuing increase of persons illegally entering Canada between ports of entry, and thereafter claiming refugee status, it is necessary to identify the specific sections of relevant legislation and Agreements to the issues.

When the debate devolves into whether the action is illegal or ‘irregular’, it is clear that the status quo is not sufficient. We need informed and effective action; not more political messaging.

Requirement to Report at a Designated Port of Entry
Section 11 of the Customs Act requires reporting at a designated port of entry for questioning before entering Canada. Sections 11 and 18 of the Immigration and Refugee Protection Act (IRPA) create a similar requirement, as does s. 27(1) of the IRPA Regulations.

Refugee claims
Although the Act articulates formal application procedures at ports of entry, or before arrival in Canada, s.99(3.1) expressly authorizes refugee claims made by persons from within Canada – and this includes after illegally entering Canada.

Section 100 requires the officer to refer the claim to the Refugee Protection Board within three days (unless the officer concludes the person is inadmissible on grounds of   security, violating human or international rights, serious criminality or organized criminality). Section 101 of IRPA further clarifies the ineligibility grounds, and Sections 23 and 24 allow the officer to release the individual and allow them entry as a temporary resident to pursue their refugee claim.

Detention of Claimant
Section 55(1) of IRPA provides the usual grounds of discretionary detention by an officer, including belief of inadmissibility coupled with anticipated failure to appear, or risk to the public. Section 55(3) permits detention on entry (which should apply to these illegal entry cases) on belief of defined inadmissibility grounds plus a belief of future failure to appear.

Immunity from charges
Section 133 of IRPA specifically exempts persons claiming refugee status from prosecution for violating the Act, including illegal entry, using false documents, providing false information etc... or, under the Criminal Code (false passports, forgery and the like) until such time as their claim has been resolved.

Safe Third Country Agreement
Part 8, Division 3 of the IRPA Regulations implements the Safe Third Country Agreement between Canada and the U.S. to prohibit a refugee claim from being made by a person at a designated land port of entry unless they are from a country which is visa-exempt or has family links – all of this is defined in s. 159.5.

The Agreement’s (and Regulation’s) exclusive application at land ports of entry, created a now well-known ‘loophole’ that actually incentivizes entry between ports of entry (despite being a violation of the Act).

Note that the Agreement applies to all persons entering from the U.S. and not just those who have applied for, successfully or not, refugee status in the U.S. (as some media have inaccurately reported).

Conclusion
It is illegal to enter Canada between designated ports of entry but, having done so, that person suddenly has a legal right to pursue a refugee claim – with appeals and subsequent ‘humanitarian’ authorization.

The dramatic increase in volume of people illegally entering Canada and then claiming refugee status, has numerous negative ramifications for Canada, and the government needs to finally address the problems, including:

• significant delays in case processing for persons who are legally seeking immigration status;
• significant increase in numbers of persons ordered deported but who remain in Canada;
• growing costs for local governments responsible for social welfare services;
• entry to Canada of persons who pose a current or future safety or security risk.

Recommended Actions
The following actions merit consideration by the next Government:

• Identify the specific profile of persons who have recently illegally entered Canada from the U.S. and claimed refugee status – such as how many are U.S. citizens, persons who have had refugee claims denied in U.S., never applied for refugee status, have been in U.S. for more than 5 years, are illegally in U.S., have just recently arrived in the U.S. (and from where), or have removal orders issued against them (including for criminality or security grounds).
• Seek amendment to the Safe Third Country Agreement to include all ports of entry plus entry made between them. Persons who illegally enter Canada may choose to re-enter the U.S. thereafter, so it’s better for both countries to deal with such cases upon interdiction.
• Rescind the family member exemption for persons who enter Canada illegally;
• Disincentivize illegal entry attempts by working with the U.S. to develop a joint, secure, Processing Centre where illegal entrants will be held while processing their claims through an expedited process if they cannot immediately be returned to their country of origin;
• Encourage the U.S. to continue to implement Enhanced Visa Screening for persons seeking entry to the U.S.;
• Increase Resources to CBSA and IRCC to expedite case processing, eliminate case backlogs, and improve actual removals from Canada with quarterly public reporting in all areas;
• Amend CBSA Act to expressly Permit Pursuit of Port Runners and CBSA officers performing duties between ports of entry;
• Deploy the border sensor technology systems that were committed to in the Border Integrity Technology Enhance­ment Program, putting to use the already approved $93M allocation to RCMP that has not been delivered.
• Increase CBSA operational resources at specified marine ports, and authorize designated CBSA officers to enforce Criminal Code provisions relating to the illegal import/export of specified items.

These are challenging issues that will require a trifecta of substantive reforms, U.S. cooperation, and increased resources. Hopefully, our next Government will be up to the task.  

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Scott Newark is a former Alberta Crown Prosecutor who has also served as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor at Simon Fraser University.