No sooner was the United States presidential election called
in favour of Donald J. Trump had the infamous ‘Move-to-Canada’ memes, tweets
and photos begin circulating social media (c.f. Austen & Levin, 2016).
Worries and concerns spread in earnest shortly after President-Elect Trump’s
win, with the Internet working itself into a fury and following with a barrage
of opinions about leaving ‘The Land of the Free’ and heading north past the 49th
parallel. Various media sources had even been reporting that the website of
Canada’s immigration department had crashed, overloaded by Americans looking
for a new country to call home (Austen & Levin, 2016).
Since the election, a desire to flee the United States
and its election decision has routinely been expressed. Yet on the other side
of the border, Canadians, while having worries and concerns of their own about
the future of Canada-U.S. relations, also retained whiffs of pride and smugness.
‘At least Trump isn’t our leader,’
‘Canada is a diverse country,’ ‘at least Canada accepts all people from all
backgrounds’ were just a few of the thoughts floating in the minds of Canadians,
of whom were nervously laughing to each other while they glued themselves to
each minute of the presidential election coverage. We pride ourselves on the
belief that, in Canada, we would never close our borders to immigrants and
refugees, and that such authoritarian and neo-fascist notions of migrants and
refugees heard from the American presidential campaign would never be accepted
north of the border. Canadian values of multiculturalism and diversity, we
believe, trump vitriolic hate speech (and in effect, would trump Trump-like
characters hoping to lead our country one day).
However, in terms of Canadian immigration laws, it is perhaps
the case that Canadians reconsider such beliefs. While examining Canada’s Immigration and Refugee Protection Act
(S.C. 2001, c.27), federal legislation which deals with the protection of
immigrants and refugees, our main immigration law is anything but clear and
definitive for immigrant and refugee admissibility (Ross, 2014). Arguably, one
of the most contentious provisions in the IRPA is section 34. In force since
2001, section 34 deals with the inadmissibility of permanent residents or
foreign nationals into Canada on the reasonable grounds of security issues. It
reads as follows:
34(1) A permanent resident or a foreign national is
inadmissible on security grounds for
(a) engaging in an act of espionage that is against Canada or that is
contrary to Canada’s interests;
(b) engaging in or instigating the subversion by force of any government;
(b.1) engaging
in an act of subversion against a democratic government, institution or process
as they are understood in Canada;
(c) engaging in
terrorism;
(d) being a
danger to the security of Canada;
(e) engaging in
acts of violence that would or might endanger the lives or safety of persons in
Canada; or
(f) being a
member of an organization that there are reasonable grounds to believe engages,
has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or
(c). (S.C. 2001, c.27)
Notwithstanding the broad (and arguably, vague)
interpretation of ‘danger’ and ‘terrorism’ (of which the latter has yet to
reach a universal definition), of interest to many Canadian immigration and
legal-aid lawyers is the last statute, section 34 (1)(f). This statute is seen
by many legal professionals and academics as “an unjust statute being
manipulated by high-handed federal bureaucrats to punish law-abiding people who
ought to qualify for refuge or residence in Canada” (Ross, 2014). Indeed,
people attempting to make Canada their new home have seen an increased
difficulty in the post-9/11 era. Such immigrants or refugees who perhaps at one
time in their life, for instance, informally engaged in political acts, gave a
one-time donation to opposition groups in their countries of origin, or who
acted as “informal contact[s] for foreign journalists who were seeking
interviews with anti-government guerrillas,” face the threat of deportation on
the grounds that they pose as security risk to the people of Canada (Ross,
2014).
Under section 34, it makes no difference to Canadian
immigration officials whether the person seeking refuge or residence has
engaged in violence or subversion themselves. The broad terminology used within
the section itself is enough for immigration officials to reason that the
applicant once supported an organization at some point in the past, to which
the organization either “possibly did engage in subversive activities[,] or that at some time in the future[,]
[the organization] possibly will” (Ross, 2014).
Indeed, Canadian immigration law is consistently faced
with determining how to define such acts as ‘subversive’ or ‘terrorist,’ as unfortunately,
section 34 could easily apply to anyone in our conflict-ridden world. Therefore,
while some applicants have never directly engaged in political violence
themselves, the broad language of the section continues to widen the scope of
inadmissibility, of which increases the quantity of people facing the threat of
deportation from Canada, and the outright rejection of foreign nationals’
applications for residence or refuge.
Furthermore, as the Canadian Immigration Blog (2015)
indicates, several court judgements have succinctly concluded that the
definition of membership within section 34 (1)(f) does not require direct
complicity with the wrongful conduct of the organization itself, nor is it a
requirement for the member to direct comply with the actual participation of
wrongful behaviour and conduct in the future (c.f. Ezokola v. Canada, 2013; Joseph
v. Canada, 2013; Posteh v. Canada,
2005). In effect, the broad interpretation of membership parallels the
interpretation of ‘an act of subversion,’ ‘an act of violence,’ ‘terrorism’ and
‘Canada’s interests,’ all of which are open to the Canadian government’s
intentions to further securitize the Canadian population for its own ‘safety.’ However,
such increases in security have been justified on the basis of an
“indeterminate danger,” in which case one could argue that such securitizing
discourses have become contingent upon suspicion rather than reasonable grounds
(Bell, 2006, p. 149; see also Walby et al., 2016).
In short, Canadians should reconsider their whiffs of
pride as their American counterparts’ transition into a Trump administration. It
may be the case that Canadian ‘values’ (however we appear to define them)
differ from the Americans, and it is my hope that Canadian culture will
continue to be welcoming and inclusive for people from all walks of life. However,
section 34 of the IRPA, as it currently stands, is a strong reminder that
Canadian immigration law must reflect such changes for inclusivity, rather than
broadening the scope of deportation and securitization from ill-perceived
threats. Bridges, not walls, must be built so that we may reach out and support
those in need in these desperate and hostile times. As Bauman contends, “the
sole way out of the present discomforts and future woes leads through rejecting
the treacherous temptations of separation” (2016, p. 18). Indeed, let us work
together in solidarity towards an immigration law which rejects such treachery,
and combat the political speech of separation that is based upon extant
suspicions, animosities and overarching indifference towards an-Other.
References:
Austen, I. & Levin, D. (2016). “As Americans Look North to Flee
Donald Trump, Canada Peers Back in Worry.” The New York Times: November 9.
Bauman, Z. (2016). Strangers at
Our Door. Cambridge: Polity Press.
Bell, C.
(2006). Surveillance strategies and populations of risk: biopolitical
governance in Canada’s National Security Policy. Security Dialogue 37(2): 147-165.
Canadian
Immigration Blog (2015). ‘Section 34(1)(f) of the IRPA – membership does not
require complicity.’ Belissimo Law Group:
April 13.
Ross, O. (2014). “In Canada’s immigration law, anyone
can be a terrorist.” The Star: April 27.
Walby, K., Lippert, R., & Gacek, J. (2016).
“Securitizing ‘National Interests’: Canadian Federal Government Departments,
Corporate Security Creep, and Security Regimes.” In National Security, Surveillance, and Terror: Canada and Australia in Comparative Perspective. R. Lippert, K.
Walby, I. Warren, and D. Palmer (eds.). London: Palgrave. Pp. 155-176.
Legislation cited:
Ezokola v. Canada (M.C.I.), 2013 SCC 40.
Immigration and Refugee Protection Act (S.C. 2001, c.27).
Joseph v. Canada (M.C.I.), 2013 FC 1101.
Poshteh v. Canada (M.C.I.), 2005 FCA 85.
© 2016
James Gacek
James Gacek is a PhD candidate at the University of Edinburgh, Edinburgh Law School. While his research interests are many, his work can be generally categorized within the realms of socio-spatiality, socio-legality and socio-sexuality. He has begun to publish in the areas of incarceration, genocide carcerality, film and media studies, cultural and visual criminology, exploitative relationships between human and animals, and emerging Canadian state surveillance. James is an American Sociological Association Student paper award recipient (2014).
This blog post is cross-posted at Robson Crim.
This blog post is cross-posted at Robson Crim.
