The governments of both Canada and the US are threatening or testing measures to further close off the Canadian border as the escape route of last resort for those fleeing the US.

Representatives of a coalition of more than 300 refugee rights, civil liberties, gender justice, and migrant advocacy groups came to Parliament Hill in Ottawa today to speak out against Bill C-2, the “Strong Borders Act” introduced by the new Liberal government of Canada. They called for withdrawal of Bill C-2 as a “dangerous shift toward Trump-style anti-immigrant policies and attacks on the rights and freedoms of all residents” of Canada.

Despite its name, Bill C-2 is predominantly a surveillance bill, not a border bill. It would authorize a wide range of seizures of digital devices and data, location tracking, compelled assistance of communications and cloud services providers in extracting and providing the government with data from and about their customers and users, and conversion of requests from the US and other foreign governments into orders legally enforceable in Canada, among a wide range of other Big Brother tactics. Bill C-2 appears to be inspired by, but goes well beyond, the most invasive surveillance practices of the US government.

Bill C-2 is first and foremost a threat to Canadians’ freedom and an attack on the Canadian Charter of Rights and Freedoms. But it’s also a dire threat to the right to leave the US and to the ability of people in the US to exercise, if need be, their right to asylum.

As it pertains to the border, the most significant changes that Bill C-2 would make in Canadian law would be to close most of the few remaining legal pathways for refugees or asylum seekers, especially those fleeing the US, to enter or remain in Canada.

According to our friends with the International Civil Liberties Monitoring Group / Coalition pour la surveillance internationale des libertés civiles (ICLMG / CSILC):

Changes to the… Immigration and Refugee Protection Act (IRPA)…  would severely and arbitrarily limit the ability of individuals to claim asylum in Canada, in violation of international human rights law. This includes requiring asylum claims to be made within one year of an individual arriving in Canada, ignoring that circumstances can change in one’s country of origin at any moment; this goes even further than current US limitations on refugee claims, which allows for some exceptions. Amendments to IRPA would also change the rules for refugee claimants who enter Canada from the US between ports of entry – rules that were already made too restrictive under the Safe Third Country Agreement with the US. Currently, refugees are able to make an asylum claim after being in Canada for 14 days; the bill would eliminate this possibility completely. This would force even more claimants to remain in the US, although it is not a safe country for refugees.

Changes to IRPA will also allow the government to cancel or suspend groups of immigration documents (visas, for example), pause the acceptance of new applications, or pause/cancel applications already in the queue, on the basis of the “public interest” including national security – which could allow for the mass cancellation or suspension of the processing of individuals from certain countries, or under certain kinds of visas or immigration documents, etc., similar to what we have seen in the US.

For as long as the US and Canada have been under separate sovereigns, the Canadian border has been a critical escape route for individuals and groups persecuted in the US and/or fearing persecution if deported by the US to other countries.

In the 18th century, those who opposed the American revolution, persecuted as counter-revolutionary “Tories” in the newly independent states, crossed the border to refuge in Canada, where they were welcomed and celebrated as “Loyalists” to Britain.

In the 19th century, the Canadian border was the goal of enslaved African-Americans seeking freedom on the Underground Railroad. The US states north of the Mason-Dixon Line, where the Fugitive Slave Act allowed them to be captured by bounty-hunters and sent back South, was only an intermediate stage on the path to freedom in Canada.

In the 20th century, tens of thousands of US war resisters found sanctuary in Canada from US military conscription and US military orders to carry out war crimes in Indochina.

In the 21st century, many of those immigrants and refugees targeted by the US Special Registration program after 9/11, particularly those who feared mistreatment by the Taliban or the Pakistani Taliban if they were returned to their countries of citizenship, fled the US across the northern land border to seek asylum in Canada.

American citizens and residents, regardless of status, have always assumed that if they came under persecution in the US, they could always seek asylum in Canada.

Today, the land borders are the only possible escape routes that are even a possibility for most people in the USA — whether citizens of the US or other countries — seeking to flee.

The US government claims and exercises complete power over who is able to leave the US by air, by (1) deciding whether or not to issue passports to US citizens (which many US citizens don’t have, which many US citizens have difficulty obtaining, and which can take weeks or months to obtain), (2) ordering  airlines to not to transport  passengers without ID documents the US government deems sufficient, and (3) ordering airlines not to issue a boarding pass unless they receive individualized per-passenger, per flight permission from the US Department of Homeland Security (DHS) in the form of a favorable Boarding Pass Printing Result (BPPR) message.

Regardless of whether you are a US citizen, a citizen of another country, or a stateless refugee, if you want to leave the US without permission from the US government your only real options are the US-Canada or US-Mexico land borders.

But even as Canada is considering legislation that could further close off the Canadian border to asylum seekers or others seeking to leave the US, the US government has been experimenting with measures to further close off flight to Canada from the US side.

Historically, the US has had tried to control departure by land, other than to try to channel it to official border crossings where those entering Canada or Mexico could be inspected by those countries’ authorities.

Last month, however, the DHS set up highly unusual checkpoints for several days at points of exit from the US to Canada. According to reports in both Canada and the US, travelers trying to leave the US were delayed up to three and half hours at the northern end of I-5 at Blaine, Washington. All travelers leaving the US were searched and questioned. We don’t know if any were arrested or prevented from leaving the US, but the clear message was that the US government can control whether you will be  be able to leave the US.

So far was we can tell, US citizens are entitled to remain silent as long as they are on the US side of the border, and must be allowed to proceed unless there is evidence that they aren’t US citizens or have committed a crime. Historically, though, warrantless searches and questioning of individuals leaving the US have been so rare that we can find no case law as to what, if any, questions US citizens are  required to answer or papers they are required to show at an exit checkpoint at a US land border.

Have you been prevented from leaving the US? Please share your story.