Could Canadian Truckers Be Granted U.S. Asylum?

Probably not, though Congress could still act

By Andrew R. Arthur on February 25, 2022

Rep. Yvette Herrell (R-N.M.) announced this week that she would be introducing legislation to offer asylum to Canadian truckers caught in the recent crackdown announced by that nation’s prime minister, Justin Trudeau. That raises the question of whether those Canadian nationals would otherwise be eligible for protection in the United States. The answer is likely no, but the situation underscores issues on both sides of the “world’s longest undefended border”.

Background on the Protest. By way of brief background, on November 19, Trudeau announced that cross-border truckers would be subject to Canada’s mandatory Covid-19 vaccine and quarantine requirements, effective January 15.

That prompted a convoy — primarily of trucks — to head to Ottawa, entering Canada’s capital city on January 28. The next day, as Reuters reported: “Thousands of protesters under the banner ‘The Freedom Convoy 2022’ hold a loud but peaceful protest in downtown Ottawa”.

From an undisclosed location on January 31, Trudeau decried the protestors, asserting that: “We won't cave to those who engage in vandalism. ... There is no place in our country for threats, violence, or hatred.”

Protests continued for a second week, and on February 6, Ottawa Mayor Jim Watson declared a state of emergency. The next day, police began seizing fuel for the trucks, and a court issued an injunction against the blowing of horns in the downtown area.

That same day, protestors blocked several border crossings between the United States and Canada, including the Ambassador Bridge (“North America’s #1 International Border Crossing”, which carries a quarter of all U.S.-Canadian commerce ), connecting Windsor, Ont. and Detroit, Mich.

The closure of these border crossings resulted in trade disruptions between the two countries, and on February 11, the Biden administration called on Trudeau’s government to utilize his federal powers to reopen the commerce flow.

On that day, a Canadian court froze millions of dollars in donations to the protestors that had been gathered by the crowd-sourcing site GiveSendGo. That case was brought by Ontario Premier Doug Ford, who had termed the protest an “occupation” and vowed, “Any harassment or acts of hatred or acts of violence will have zero tolerance."

Also on the 11th, Ford declared a state of emergency in the province (which includes Ottawa), with threats of fines up to C$100,000 and imprisonment and a vow to “consider taking away the personal and commercial licenses of anyone who doesn’t comply”. In a press conference, he stated: “This is no longer a protest. With a protest, you peacefully make your point and you go back home.”

The Ambassador Bridge reopened on February 13, under a court order.

Trudeau Invokes the Emergencies Act. On February 14, Trudeau invoked Canada’s Emergencies Act in response to the protests. This was the first invocation of the act, which was passed in 1988 as the successor to Canada’s August 1914 War Measures Act.

That latter act itself was invoked only on three occasions — World War I, World War II, and by Trudeau’s father, Prime Minister Pierre Trudeau, in response to a crisis “inspired” by the Front de Liberation du Quebec, a revolutionary separatist movement in the province of Quebec.

A helpful infographic “modified” by the Canadian government three days after Trudeau fils invoked the Emergencies Act explains that it can only be called upon when “there is an urgent, temporary, and critical situation that endangers the health and safety of Canadians”, and “the situation cannot be dealt with effectively under any other federal, provincial or territorial law”.

At a news conference, the prime minister complained: “The blockades are harming our economy and endangering public safety. ... We cannot and will not allow illegal and dangerous activities to continue.”

Under the act, the Canadian government has the authority to ban gatherings in the vicinity of critical infrastructure that could “reasonably be expected to lead to a breach of peace”, and to designate “protected places”, including the federal parliament.

Specifically, according to the BBC, the act also allows the government to “bar travel to or from specific areas — from Parliament Hill or major border crossings” and to “order the evacuation of people and personal property from certain areas, possibly using this power to clear out congested areas of protesters”.

It also allows financial institutions “to choke off the convoy from the massive amount of money it has raised through crowdfunding sites, in part from foreign sources”, and enables banks “to temporarily freeze the accounts of those suspected of supporting the blockades, without a court order”.

The Washington Post reports: “Crowdfunding platforms, such as GoFundMe, will have to report suspicious activities to Canada’s financial intelligence unit, and they will be subject to anti-money-laundering and terrorism financing laws.”

The Police Response. Government officials in Canada were thereafter quick to disperse the protesters. On February 17, police warned the protestors that action was “imminent”, and the next day started to push into the crowds gathered in Ottawa.

As Joe Warmington explained in an opinion piece in the Toronto Sun on February 18:

The violence the Prime Minister has expressed concern about during the three-week protest in Ottawa didn’t unfold until Justin Trudeau’s Emergencies Act police army was sent in to disperse the crowd.

The three major incidents Friday, under a form of martial law, were grotesque.

Video of Toronto Police Mounted Unit officers charging into the crowd and at least one horse trampling multiple people — including an elderly woman with a walker — was disturbing.

But that was not the only troubling incident.

Another saw a protester behind a police line repeatedly being smashed with an officer’s rifle.

And convoy organizer Benjamin Dichter also told the Toronto Sun “one of drivers had his truck windows smashed by Ottawa Police (with) guns drawn and (he was) dragged out of his vehicle by force.”

By February 21, according to the Ottawa Police, there had been 196 arrests, 110 individuals faced charges, and 115 vehicles were towed. As per the Washington Post: “Several organizers of the convoy — who include people with extremist ties and anti-government views — were among those who were arrested.”

Concerns About the Canadian Response. Opinions on the Canadian government’s actions have been mixed, to say the least.

Before a vote on the measure in the House of Commons on February 21 (required under the Emergencies Act), Trudeau defended his actions, stating: “It became clear that local and provincial authorities needed more tools to restore order and keep people safe".

Jagmeet Singh, leader of the New Democratic Party (also in the majority in the Canadian parliament with Trudeau’s Labour Party), was more guarded: “We share the concern of many Canadians that the government may misuse the powers in the Emergencies Act, so I want to be very clear: We will be watching. We will withdraw our support if, at any point, we feel these powers are being misused”.

On the other hand, after the measure passed Commons on a vote of 185-151, interim Conservative Party (and opposition) leader Candice Bergen asserted that her party’s “MPs stood up for Canadians and voted against this government overreach. The Emergencies Act was not necessary to clear the blockades, the government already had all the tools they need under current Canadian law.”

The Wall Street Journal editorial board also railed against Trudeau’s invocation of the act:

Protests aren’t emergencies, and Western leaders had better get used to handling civil disobedience firmly without traducing civil liberties. Mr. Trudeau criminalized a protest movement, deputizing financial institutions, without due process or liability, to find and freeze personal accounts of blockaders and anyone who helps them. These extraordinary measures are a needless abuse of power.

After criticizing the prime minister for refusing to “meet or compromise” with the protestors (which he had done with others in the past), the Journal argued: “In abusing these powers for a nonemergency, Mr. Trudeau crossed a democratic line. Canadians wanted the blockades to end, but it never should have come at the expense of the rule of law.”

In that vein, George Washington University law professor Jonathan Turley raised concerns that Trudeau was using the exceptional authorities in the Emergencies Act against those with political views with which he disagreed:

Trudeau wants to continue to be able to freeze the accounts of political opponents and give black lists to banks for those who will be tagged under his new powers. There are no meaningful limits on such powers. These same sweeping emergency powers could be used against some of our most celebrated figures and shutdown some of our most revered causes. Under this law, the only thing preventing Trudeau from shutting down movements — even historic movements like the Civil Rights marchers or protests of indigenous peoples — is his affinity for the cause as opposed to the underlying conduct.

Eligibility for Asylum. All of which brings me back to whether the Canadian protestors would be eligible for asylum in the United States.

To establish eligibility for asylum, an applicant must show either past persecution or a well-founded fear of future persecution on account of: (1) race; (2) religion; (3) nationality; (4) membership in a particular social group; or (5) political opinion.

Turley makes a strong case for the protestors to assert that they were targeted for action by the Trudeau government for their assertion of a political opinion, in this case, one against Covid-19 restrictions and mandates. Note that “political opinion” in this context does not necessarily mean support for or opposition to a particular political party — even neutrality can be a “political opinion”.

With due respect to the Washington Post, even some with “extremist ties” are eligible for asylum — assuming that they have not engaged in persecution themselves or committed “serious nonpolitical crimes”. And if it didn’t protect people holding “anti-government views”, the asylum laws would largely be worthless, because few with “pro-government views” need protection.

The problem those protestors would have in establishing asylum eligibility would be in proving they have been “persecuted”. Note that “persecution” is not defined in the Immigration and Nationality Act, but rather the term has been deemed in case law “an extreme concept, marked by the infliction of suffering or harm ... in a way regarded as offensive”.

Persecution can be found in one particularly serious instance of harm, or it can be the cumulative product of several less serious events. It can take the form of physical violence (including torture, but not exclusively), as well as threats of violence.

Detention and confinement can constitute persecution (depending on the conditions, treatment, and duration), but usually imprisonment for actual criminal activity does not satisfy the standard. Mental, emotional, and psychological harm can also meet the standard.

With respect to the seizure of bank accounts and the freezing of assets, economic deprivation can also constitute persecution, but it must be substantial and severe, essentially rendering the victim unable to replicate his or her existence. That said, the Ninth Circuit has held that the seizure of land and livelihood could support a persecution claim.

Just because a country is a democracy with a Westminster-style parliament and a free press does not mean that a national of that country cannot be granted asylum. As an immigration judge, I heard several asylum cases from the United Kingdom — usually, but not exclusively, from Catholic residents of Northern Ireland.

One of the most unusual U.S. asylum cases involved Michel Christopher Meili, who had worked as a night watchman in a Swiss bank. Meili leaked documents intended for shredding that led to the recovery of billions of dollars in assets for Holocaust survivors and relatives of victims.

That did not sit well in certain quarters as Meili and his family received death threats, and he was shut out of other jobs. He fled to the United States, where he and his family were granted permanent residence in a private bill sponsored by (among others) then-Sens. Al D’Amato (R-N.Y.) and Joe Biden (D-Del.).

That said, asylum goes both ways. Former chess champion Bobby Fischer — a U.S. citizen — was offered asylum in Iceland when he was fighting extradition from Japan to the United States. The “homeless hacker”, Christopher Mark Doyon (aka: “Commander X”), sought asylum in Mexico to prevent repatriation back to this country.

Opportunities for Recourse Under Canadian Law. Even if a putative Canadian asylum applicant could satisfy the requirements above, however, a final grant would hinge on that applicant’s opportunities for recourse under Canadian law. Simply put, if your home government will ultimately protect you, that is where you should go for protection.

The Canadian government’s backgrounder on the Emergencies Act (“modified” on February 17) contains assurances that, even when the act is invoked, “the Canadian Charter of Rights and Freedoms (Charter) continues to protect individual rights.”

It continues: “In deciding on measures to take, the Government must respect constitutionally protected rights and freedoms, including the rights of citizens to enter Canada and the right to life, liberty and security of the person, as well as Canada’s obligations under international law”.

That said: “The Charter allows the Government to balance the rights of the individual with the interests of society where limits on guaranteed rights and freedoms can be justified in a free and democratic society.”

What “limits on guaranteed rights and freedoms can be justified in a free and democratic society” is the essential question. Few who have lived through the past two decades-plus in the United States would be unaware that in times of danger, even free citizens are willing to sacrifice some even essential freedoms for a level of safety and security.

A Mainstreet Research poll conducted between February 16 and 17 of 1,323 Canadian adults revealed that respondents are split on whether they support or oppose the federal government’s invocation of the Emergencies Act. Fifty-one percent of respondents supported the action (38 percent “strongly”), while 44 percent opposed it (39 percent strongly).

In any event, the protestors seem to have made their point. Fifty-five percent of respondents in that poll stated that it is time to end Covid-19 related restrictions, compared to just 36 percent who want to keep those restrictions in place.

Congress Can Act If It Wants. What all of this really comes down to is that countries that promote themselves as havens for the oppressed abroad are expected to be exemplars of freedom and democracy themselves. Here’s an example of that in practice.

Thousands of farmers in India have been protesting new laws affecting them in that country, and Trudeau “speaking at an online event on Facebook to mark the 551st birth anniversary of Guru Nanak on November 30”, expressed his support:

Let me remind you, Canada will always be there to defend the rights of peaceful protesters. We believe in the process of dialogue. We’ve reached out through multiple means to the Indian authorities to highlight our concerns. This is a moment for all of us to pull together.

That did not sit well with the Indian government, any more than monetary and political support that has flowed to the Canadian truckers from the United States has pleased Canadian officials. More saliently, however, it underscores a certain hypocrisy that is not alien to politics on either side of the 49th parallel, regardless of partisan stripe.

All of that said, if the U.S. Congress wanted to up the ante, it could deem some, many, or all of those adversely affected by Trudeau’s implementation of the Emergencies Act eligible for asylum in the United States, it would be well within its power to do so. Private bills like the one that protected Meili and his family are one way, but broader legislation could be introduced, too.

Chinese nationals who were adversely affected by that country’s “one-child policy” were not eligible for asylum under the INA until Congress amended the law to include them in 1996. The granting of asylum to a country’s nationals may not necessarily be “a judgment against the country in question”, but it is certainly a way to make a point about that country’s policies.