Refugee claimants -- as a legal matter what can the Federal Government do?

The recent Sun Sea incident -- where a boat load of Tamils seeking residence in Canada landed on the coast of British Columbia -- has raised a political fire storm.

I see the incident as something of a tempest in a teapot. The Tamils will, or will not, be granted refugee status and the nature of their arrival will soon be forgotten. Nevertheless, there are dire predictions of a flood of boats washing up on Canadian shores and the government claims to have new legislation in the works.

As a legal matter, what can be done to stop a boat load of people intent on landing in Canada and claiming status?

Surprisingly little.

Canada is obliged to accept refugees as part of international agreements. Those treaty obligations do not, however, mean that refugees have the same rights as Canadians. Other nations, for example, Australia accept refugees but keep them in detention facilities until such time as they are processed. Australia also keeps refugee claimants offshore in centres on Manus Island or Nauru. The effect of such detention has been to limit the number of refugee claimants to Australia.

Such mandatory detention is not an option for Canada as a result of the Supreme Court's application of constitutional rights and freedoms to refugee claimants.

In 1985 the Supreme Court ruled that everyone in Canada is entitled to the protection of the Canadian Charter of Rights and Freedoms. As a result, persons who arrive in Canada, regardless of their actual status, must be given a hearing if they claim to be refugees and are entitled to be at liberty in Canada unless they are a danger to the public or are unlikely to attend at an immigration hearing.

This decision was not inevitable -- the United States Supreme Court approached the issue rather differently -- but once the Charter applied to anyone physically in Canada the resulting right to a hearing and liberty in Canada pending such hearing was inevitable.

More generally, recent Charter decisions, most notably those relating to Omar Khadr, suggest that the Charter would have extra territorial effect if Canadian government officials acted outside the county to implement policies established within the country. Specifically, should Canadian officials intercept boats bound for Canada outside Canadian waters with a view to turning the boats away, it is almost certain that the Supreme Court would rule the Charter applies to passengers on those boats. Those passengers would be entitled to land in Canada and assert refugee claims.
So what can the Federal Government do?

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.

There could be legislation declaring the Supreme Court's ruling inoperable -- an application of the "notwithstanding" clause of the Constitution. Such a dramatic step would certainly cause an election and the political fallout would be most uncertain.

Unless the "notwithstanding" clause is invoked, perhaps the only practical response is to speed up the refugee claim process. Presently the complete processing of a refugee claim usually takes months, or even years. If the process were made more rapid it might discourage bogus refugee claimants -- and since genuine refugee claimants are entitled to entry a speedier process would not be problematic for them.