All reasonable Canadians would agree that foreigners claiming refugee status at the land border should be treated fairly. That these migrants are arriving from the only country considered “safe” by Canadian law obviously influences what constitutes “fair” treatment in this case. The designation of the United States as a “safe third country” has profound consequences in determining Canada’s exact obligations. Unfortunately, this aspect of the current border situation has been misrepresented by immigration minister Ahmed Hussen and senior bureaucrats who insist the Charter of Rights and Freedoms automatically grants a hearing to refugee claimants. Canadians are understandably confused by the government’s border policy because it is being justified on the basis of an inaccurate legal claim.
Anyone who reads the Charter will see that it does not mention anything about hearings for refugee claimants. Any such right would have to be included indirectly to avoid a potential violation of the Charter’s protection of “life, liberty and security” (section 7). The Supreme Court dealt with this issue in its landmark 1985 Singh ruling and it established several principles relevant to the current situation.
While refugee claimants are covered by the Charter as soon as they arrive at the Canadian border, the court explained that “procedural fairness may demand different things in different contexts.” Contrary to what has been assumed generally by the legal community, the country’s highest court did not stipulate that all refugee claimants have a right to a hearing once they are on Canadian soil. At Quebec’s Lacolle Port of Entry, for example, “due process” currently means immediate return to the U.S. in accordance with the Safe Third Country Agreement.