Recently a freighter loaded with Tamil refugees from Sri Lanka docked on the B.C. coast and stirred up controversies across the nation. More ships are on the way.
Whether the claimants will be granted refugee status will be determined by our established system. I hope the claimants will be dealt with fairly. Nonetheless, many fear that the arrival of the freighter will open a floodgate to refugee claimants. What can the federal government do?
According to Prof. James Morton, surprisingly little.
In Prof. Morton’s blog “Refugee Claimants — As a Legal Matter, What Can the Federal Government Do?” Prof. Morton explained that Canada is obliged under international treaties to accept all refugee claimants. Upon the claimants’ arrival, the Charter is triggered and the claimants may not be detained without a hearing unless they are a danger to the public or unlikely to attend an immigration hearing.
(Other countries such as the U.S. and Australia have adopted considerably different approaches to the rights of refugee claimants. For example, in Australia the claimants are detained at an off-shore facility before they are processed.)
Therefore, under the international treaties and our Constitution, there is very little that the federal government can do on this matter. According to Prof. Morton:
Boats carrying refugees could be seized and kept as Crown property — but as such boats are usually close to scrap metal and the profits from smuggling are so huge that such seizure will do little — the Sun Sea, for example, was worth perhaps one million dollars while the profits from the human smuggling were ten to twenty times that. The crew of the boats could be subject to criminal charges — but if the crew claim to be refugees themselves the criminality would not apply. If someone has a right to seek status, they cannot be held criminally responsible for seeking that right. Crews made up of refugee claimants are hardly a new development — look to Cuban refugees of the last fifty years.
Another option is for the federal government to legislate laws invoking the “notwithstanding clause.” However, there is great doubt whether our constitutional tradition would allow such a piece of legislation, not to mention the potential political fallout.
James Morton, B.Sc. (Western), LLB (Osgoode), LLM (Leicester), is a partner at Steinberg Morton Hope and Israel LLP. Mr. Morton practises in litigation with a focus on civil litigation matters. He is certified as a specialist in civil litigation and has practised and lectured in the litigation area exclusively since 1990. Visit his blog at Morton’s Musings at jmortonmusings.blogspot.com.
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
