Legal experts say Canada’s immigration laws are clear: “They’re not illegal border crossers,” said James Hathaway, founding director of the University of Michigan’s program in refugee and asylum law, who is Canadian, and a leading global authority on refugee law.
Internationally, Canada is signatory to the 1951 UN Convention Relating to the Status of Refugees. Within Canada, the Immigration and Refugee Protection Act (IRPA) is the legislation that governs the flow of people – i.e., non-citizens who enter Canada. The legislation that governs the flow of goods into Canada is the Customs Act, which applies to everyone, citizens and non-citizens.
Article 31 of the UN refugee convention says receiving countries may not penalize refugees for how they enter a country, as long as they present themselves “without delay” to authorities and show “good cause” for their presence.
In line with international practice, Canadian law under the Immigration and Refugee Protection Act, Section 133, says that someone who has claimed refugee protection, and is either waiting for a hearing or has been accepted as a refugee, can’t be charged under the IRPA with an offence over how they came to Canada.
Illegal entry is not an offence in Canada’s Criminal Code. But the Immigration and Refugee Protection Regulations 27 (2) says anyone who does not enter at a port of entry must check in “without delay” at a border point.
Many of Ontario’s new arrivals came via the U.S.-Quebec border, crossing at places other than a designated port of entry. If they promptly go to, or are taken to, a port of entry after they arrive, they have not breached immigration law, said Audrey Macklin, a professor and chair in human-rights law and director of the Centre for Criminology and Sociolegal Studies at the University of Toronto. In any case, if they file a refugee claim after they arrive, and are recognized as refugees, the manner by which they entered Canada doesn’t legally matter.