Is this illegal?

In the politically-charged arena that is grappling with the massive migration of asylum seekers around the world, words matter.

And in Canada, the debate has centred on the word illegal.

Is it “illegal” for people to cross between official points of entry on foot from the United States, as has been occurring in unprecedented numbers this year?

Ontario Premier Doug Ford thinks so, issuing a statement last week that drew a deeper wedge between competing points of view.

“The federal government encouraged illegal border crossers to come into our country, and the federal government continues to usher people across the U.S.-Quebec border into Ontario,” said spokesperson Simon Jefferies in a statement about Ontario’s withdrawal from its agreement with the federal government on resettling asylum seekers.

Thus ensued a battle over whether or not the statement, and the use of the word ‘illegal’ in particular, is factually accurate.

While many lawyers and refugee advocates argue that calling the act of crossing the border between official points of entry “illegal” is contrary to what the law actually states, others have interpreted the legislation governing Canadian borders differently.

Some journalists and lawyers have argued that saying irregular border crossers aren’t breaking the law is too simplistic or inaccurate, pointing to signs at the border that say crossing there is “illegal,” as well as language on the federal government’s own website. This, despite the fact that asylum seekers aren’t prosecuted for such illegal crossings, pending a review of their refugee applications, as per the Immigration and Refugee Protection Act, which governs the process of seeking asylum in Canada.

In fact, Immigration Minister Ahmed Hussen himself said as recently as March that he has “no qualms” about using the word illegal, and that he believed crossing the border irregularly was against the law.

On Monday, Hussen doubled down on his position.

“[W]hen someone crosses the border, it’s an illegal act but once they are on Canadian soil and they claim asylum, the charge of the crossing the border irregularly is stayed pending the determination of the asylum claim,” said the minister.

So what is the answer? Here are the most common arguments, used to argue that “illegal” is an appropriate way to describe irregular border crossers, debunked:

The Customs Act says asylum seekers must go through designated ports of entry

In an internal note, the CBC, which was widely criticized for its use of the term “illegal” to describe asylum seekers, doubled down on its position, arguing that, “it’s against the law to enter Canada without the proper papers, and without going through an official port of entry during designated operating hours, according to the Customs Act.” The Customs Act is frequently brought up by people who argue that crossing the border between points of entry violates Canadian law.

The Customs Act, however, is meant to police the border in relation to the movement of goods — not refugees — explains Audrey Macklin, a law professor at the University of Toronto. The reason travelers are asked to go through an official entry point is so that they can pay duty on imported goods.

“Nobody is accusing these irregular border crossers of smuggling goods,” said Macklin. “So to say, ‘We’re going to call them illegal border crossers,’ because the Customs Act requires people to enter at a port of entry is at best disingenuous and at worst deliberately misleading." She accused the CBC of participating in the vilification of refugees by using the term.

The word “illegal” is used in international law that governs refugees

The CBC note points out that the word “illegal’ is used in international law, like the UN Status of Refugees Convention and Protocol, which governs the process of seeking asylum and references “illegal entry.” It also discourages its reporters from using words like “irregular,” urging them to avoid “vague bureaucratic jargon.”

The Convention and Protocol, however, speaks to all states, which have a variety of legal practices. Some countries, like the United States under President Donald Trump, for example do make it a criminal offence to enter the country anywhere other than at a port of entry. Canada, however, doesn’t do that, making this a moot point.

It’s illegal to enter Canada without proper papers

A backgrounder produced by the Canadian Association of Refugee Lawyers, made up of lawyers, law students and academics, explains that one of the basic tenets of refugee law is that asylum seekers must be allowed to make their claim for protection via irregular means.

“The practical reality of attempting to reach safe harbour often necessitates such measures,” the backgrounder explains. “This understanding is enshrined in both international and domestic law.”

The United Nations Refugee Convention, which Canada has ratified, prohibits refugees from being penalized based on how they entered the country if they’re seeking protection. This is also incorporated into Canada’s Immigration and Refugee Protection Act.

Canadian Immigration and Refugee Protection Regulations (IRPR) specify that if an asylum seeker does cross the border outside of a designated port of entry, they must present themselves in front of an officer at the nearest point of entry without delay, which the vast majority of claimants do. If they do present themselves to an officer right away, they are not violating IRPA

Each country that signed on to the 1967 protocol agreed that they wouldn’t prosecute refugees for how they entered their countries, recognizing that they might be in desperate circumstances.

Macklin also points out that the lack of proper documentation is as much of a problem for people who land at Canadian airports and make asylum claims, as it is for people who cross the border between points of entry on foot, although people who fall into the latter category are most often characterized as “illegal.”

Cover image: Charles Krupa/AP