How Canadian immigration law turns judges into border guards

What happens to you if you get into an argument, it escalates and you end up hitting someone with an umbrella or pulling their hair?

If you're not a Canadian citizen, the consequences can be dramatic.

Temporary immigrants, foreign students, even permanent residents who have lived in Canada for years can face deportation for relatively minor offences.

Meritxell Abellan-Almenara is researching this form of double jeopardy for her PhD in criminology at Université de Montréal, under the supervision of Chloé Leclerc and Karine Côté-Boucher.

The results of the first part of her thesis were published last November in the UdeM journal Criminologie.

“There are cases that have made the news because people can be sent back to a country where they’ve only spent a few days of their lives,” said Abellan-Almenara, a Vanier Canada Graduate Scholarship recipient. “Sometimes, people who came to Canada as children don’t even realize they aren’t citizens and could be subject to such consequences.”

Abellan-Almenara began by searching the CanLII database, which lists all court decisions in Canada, and compiling a corpus of 59 criminal cases in Quebec in which the Immigration and Refugee Protection Act was mentioned.

She analyzed the decisions and divided the judges into two categories, each with three subcategories, based on their attitude towards their new role as “borderworkers.”

The first group accepts the borderworker function and approaches it in one of three ways—as “builders,” “dismantlers” or “maintainers.” 

The builders use their authority to strengthen the border. They seem to be happy with their new power and “apply it to reinforce and extend the border beyond what is strictly provided for by the law,” Abellan-Almenara said.

On the other hand, the dismantlers try to avoid, mitigate or minimize the immigration consequences of their decisions, sometimes in fairly creative ways. “One of the criteria that make a crime a case of ‘serious criminality’ is a sentence of more than six months,” Abellan-Almenara explained. “So some judges will impose sentences below this threshold. For example, they might give two sentences of six months less a day instead of a one-year sentence.”

The maintainers, who fall between these two positions, are the largest of these three groups: “They passively accept that their decisions will have immigration consequences for the person and don’t really factor them into their rulings,” she explained.

The other major category consists of judges who refuse to be borderworkers. They fall into three symbolic groups—the deaf, the dumb and the blind. All three disregard the possible deportation consequences of their decisions.

“These judges continue to see their role as confined to criminal justice and consider immigration issues to be outside their purview, which doesn’t prevent the system from imposing consequences at the end of the day,” Abellan-Almenara said.

In the second part of her thesis, Abellan-Almenara plans to interview judges to gain more insight into the thinking behind their decisions.

There are more crimes that can lead to deportation than one might think. “What is defined as serious criminality isn’t just serial murders, terrorism or drug trafficking,” Abellan-Almenara explained. “According to some estimates, close to 75 per cent of the Criminal Code falls into this category.”

An umbrella can be considered a weapon, so hitting someone with one qualifies as assault with a weapon and hence as serious criminality. “I think the concept is so broad as to be meaningless,” Abellan-Almenara argued.

In a political environment where immigrants are often scapegoated, Abellan-Almenara hopes her work will be useful to civil society organizations that defend them. She works informally with the Solutions Justes legal clinic.

“We’re advocating for a law that recognizes that deportation is a disproportionate punishment, especially for long-term residents,” she said. “My thesis will provide empirical evidence to support this argument.”