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Papers & Abstracts

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Papers & Abstracts

Also see: Speaker Bios | Sessions

Note: A star sign (*) next to a panelist’s name indicates a presentation, paper or abstract is available for download.

Sharryn Aiken
Queen’s University, Faculty of Law

From Slavery to Expulsion: Systemic Discrimination in Canada’s Immigration Program

Canadian immigration law and policy are informed by competing and often contradictory objectives. Nevertheless, as the text of the law and legal discourse in the area of immigration has evolved from its explicitly racist and gendered origins to objective neutrality, discrimination in its less obvious, systemic forms has persisted. From slavery to expulsion, racialized “foreigners” have been the victims of a legal system that has worked to their disadvantage on multiple and intersecting grounds of race, gender, income and disability. This paper will begin with a brief review of the defining features of immigration law and policy from implementation of the equality guarantees of the Canadian Charter of Rights in the mid 1980s to today. Immigrant selection, immigration security measures as well as the rules for refugees (including specific reference to the recent arrival of the MV Sun Sea) – will be the primary focus. Recent policy initiatives together with judicial decisions will be analyzed to illuminate the extent to which the terrain of racism in Canadian immigration law may have shifted but the promise of transformative constitutionalism remains unfulfilled for non-citizens. Indeed, the appearance of change – the language of equity and fairness in the text of the law and law talk – has served as a cover for sustaining systemic discrimination in Canada’s immigration program.

Shaheen Azmi
Ontario Human Rights Commission

Human Rights Protection for New Canadians (Click here to view the presentation)

The presentation will cover what protections are afforded to immigrants from discrimination under the Ontario Human Rights Code. These protections flow from race related Human Rights Code grounds including: Race, Colour, Place of Origin, Citizenship, Language, Ancestry and Ethnic Origin. Examples of efforts to address discrimination faced by immigrants employing Ontario Human Rights Code grounds will be identified and recommendations on how to do so will be discussed.

Keith Banting & Edward Koning
Queen’s University, Department of Political Studies

Immigrants in the Canadian Welfare State (Click here to view the paper)

In many western democracies – especially in Europe – immigrant reliance on social welfare programs is one factor, among others, helping to fuel a backlash against immigration and multiculturalism. One consequence is that immigrant access to social programs is increasingly qualified or limited through residency requirements and other techniques. Until recently, this has not seemed to be a major problem in Canada.  In fact, for a long time the economic integration of immigrants in Canada has been an international success story. Immigrants tended to outperform native-born Canadians in virtually every socio-economic statistic, and had less need to rely on social welfare programs than their counterparts elsewhere. Recent studies, however, reach more alarming conclusions.  The economic integration of newcomers is slowing, poverty levels are rising, and the need for social support is growing.  This is especially the case for those who are visible minorities. The differences with the native-born population are still small, but the trend is unmistakable.

In this context, the inclusion of immigrants within the Canadian welfare state is increasingly important.  Because immigrants have tended to find their way on the Canadian labour market relatively easily, the rules governing immigrants’ eligibility to welfare programs have not been of particular interest to scholars. This lack of interest no longer seems justified. In this paper, we survey the eligibility of immigrants for the core programs of the Canadian welfare state: pension benefits, health care, child benefits, social assistance, and employment insurance. Even though immigrants become eligible for most programs once they achieve permanent residence status, there are also clear examples of exclusion. Some forms of exclusion are straight-forward. Elderly immigrants who have been in Canada for less than ten years, for instance, are ineligible for Old Age Security benefits. Similarly, the conditions associated with sponsorship agreements exclude needy immigrants from support.  Other programs have particularly harsh consequences for immigrants in practice, even though that might not have been the intention in theory. For example, several observers have noted that the reforms in the 1990s in Employment Insurance and Social Assistance have had disproportionately negative consequences for the immigrant population of Canada.

This paper provides an overview of immigrant inclusion in the Canadian welfare state, tracks the trajectory of change in the field, and highlights problematic exclusions.

Emily Carasco
University of Windsor, Faculty of Law

Canada, Separated (Unaccompanied) Children and Human Rights

The paper examines Canada’s treatment of “separated” (unaccompanied) children within he context of the Immigration and Refugee Protection Act as well as human rights instruments to which Canada is a signatory, in particular, the Convention on the Rights of the Child. Two areas in which the best interests of the child is or could/should be relevant will be examined: children as asylum claimants and detention of children. Human rights issues arise at the port of entry as well as in the processing of claims for asylum. The paper will demonstrate that many of the problems in relation to the manner in which separated children are treated in Canada appear to arise from the fact that their status as foreign nationals is given significantly more attention than their status as children.

Joseph Carens
University of Toronto, Centre for Ethics

How Can You Belong If You Don’t Have Permission To Be There? Irregular Migrants, Amnesty and Firewalls

This paper explores two central questions, one about legal rights and the other about legal status. In the first part of the chapter I ask, “In what ways should the legal rights of irregular migrants resemble or differ from the legal rights of migrants who have settled with the permission of the state?” In the second part, I ask, “Under what circumstances (if any), should irregular migrants become regularized, that is acquire a legal residence status?” In the first part, I argue that irregular migrants are morally entitled to state protection of their general human rights, of their right to a free public education for their children, and of most of the work-related rights that citizens and authorized residents enjoy. I argue that the state should construct a firewall between protection of these rights and immigration enforcement so that the rights are more than words on paper. In the second part, I argue that irregular migrants become members of society over time and so entitled to acquire legal status as residents, despite their having settled without authorization. I consider and try to meet various objections to this position.

Marie Carpentier & François Larsen
Quebec Human Rights and Youth Rights Commission

Human Rights and Temporary Workers

François Larsen and Marie Carpentier will explain the efforts of la Commission des droits de la personne et des droits de la jeunesse du Québec (Quebec Human Rights and Youth Rights Commission) to promote and protect human rights of migrant workers. Among other things, they will present the conclusion of two legal studies regarding occupational health and safety of caregivers and affirming the jurisdiction of the Commission with respect migrant workers’ rights. Both studies are available in French in the Commission website.

William Conklin
University of Windsor, Faculty of Law

The Two Discourses regarding Statelessness

1. What is statelessness?

2. The Surface International Law Discourse:

a) The Problem: what is “by law”, “legally on a territory”?

ICCPR Article 12. 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

b) Legality depends upon the state’s domaine réserve

UN Charter: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the internal jurisdiction of any State or shall require Members to submit such matters to settlement under the present Charter.“ [Art 2(7)].

c) The State’s Domaine Réserve includes the Posit of Nationality

d) Discrimination instruments exclude norm against discrimination towards stateless persons

3. The Hidden International Law Discourse

a) Nottebhom, Second Phase, Judgment, ICJ Rep. 1955, pl. 4, at p. 23

b) Summary of Hidden Discourse before Arbitrations, Human Rts Committee of ICCPR, Committee of Int’l Conv. against Torture, ICJ, Epn Human Rts Court, Epn Court of Justice, Inter-Amer Ct Human Rights, UK, Australian & Cdn common law courts, UK, Australian & NZ Refugee courts, and some cases from Germany, Israel, & Hong Kong.

Further Reading:

-  Conklin, Hegel’s Laws: the legitimacy of the modern legal order (Stanford: Stanford University Press, 2008), esp. ch 10 & concl’n.

- “Statelessness and Bernhard Waldenfels’ Phenomenology of the Alien” in British J Phenomenology 38 (2007): 280-96.

- “A Phenomenological Theory of the Human Rights of the Alien” in Ethical Perspectives 13 (2006): 245-301.

Debbie Douglas
Ontario Council of Agencies Serving Immigrants

Successful Integration: Closing the gap between perception and reality

The notion of effective integration presumes that having addressed basic settlement needs, immigrants and refugees are now prepared to integrate and become more like ‘us’ or at least make the attempt. It is combined with the expectation that they would make the effort to fit into Canadian practices, values and norms, and that this would happen on our terms and on our schedule. We persist in this fiction even while we know that the reality is very different. This presentation explores the contradictions of the dominant discourse, examines the notion of successful integration, and offers suggestions on what needs to change to lessen the gap between perception and reality.

Dr. Bob Frankford
Right to Healthcare Coalition

Universality of coverage is one of the principles of the Canada Health Act. The Act also allows provinces to impose a three month wait period for medicare coverage, which the majority of provinces, but not Ontario have chosen not to require. The presentation will also mention inconsistencies, with other governments providing exemptions. Lack of coverage is a major concern to landed immigrants, who have already undergone health screening. Pregnancy and mental health issues are major ones, commonly experienced in the settlement period. A few exemptions providing immediate coverage exist such as for Seasonal Agricultural Workers but with no prospect of becoming permanently landed.

Barriers and Inconsistencies To Healthcare For Immigrants

Grace-Edward Galabuzi
Ryerson University, Department of Politics and Public Administration

Racialized Canadians as permanent immigrants on the outside looking in: The imperative of changing the toxic immigrant narrative

In a Canadian society cobbled together by a variety of compromises among immigrants and oppressions of original peoples, it is ironic that an emerging immigration narrative is the threat ‘newcomers’ pause to social cohesion by insisting on negotiating their place in Canada, as opposed to simply accepting the prescribe place for them. Yet, that is where Canada finds itself today, with discourses of immigration cast in racial terms and focused on migrant exclusions as a means to ensure the security of other residents. In the era of war on terror, difference in Canadian society is presented as a source of threats to Canadian society, unity, security and nationhood. Media articles claiming to interrogate tensions between ‘minority cultures’ brought to Canada by recent immigrants strike a dissembling – and somewhat disingenuous note about who really belongs or who is really Canadian. I want to interrogate these emerging discourses of ‘integrationism’ and the way in which they seek to universalize Eurocentrism notions of Canadian citizenship. I argue that they seek to narrowly define an exclusively Anglo-Franco Canadian norm, with the effect of permanently fixing racialized immigrants as the ‘other’ and normalizing their social exclusion. But on an optimistic note, I want to suggest that such a future is not inevitable and invite us to consider a different basis for social cohesion – one that reconstitutes Canadian social cohesion by normalizing racial diversity and the ideals of multiculturalism. Only then can we fully aspire to an equitable and inclusive society that welcomes immigrants as nation builders.

Don Galloway
University of Victoria, Faculty of Law

Conflicting Conceptions of Citizenship (Download the paper)

Writing in 1901, the New Zealand legal theorist John Salmond made the following interesting and perhaps prescient comments about the concept of citizenship. “Viewing the matter historically, we may say that citizenship is a legal conception the importance of which is continuously diminishing…. Citizenship and its remaining privileges are the outcome of the primitive conception of the state as a personal and permanent union of determinate individuals for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection is the product of the more modern conception of the state, as consisting merely of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial and the present twofold title of membership is the outcome of a compromise between these two co-existent and competing principles.” In my presentation, I will examine the development of this compromise, focusing both on the criteria for acquiring and retaining citizenship and the link between rights and residency.

Avvy Go
Metro Toronto Chinese and Southeast Asian Legal Clinic

Why We Must Talk about Race When We Talk about Canada’s Immigration Policy

On the world stage, Canada is viewed generally as a country that welcomes immigrants, embraces multiculturalism and respects the rights of all people. Canadians also tend to see themselves in that positive light, despite well-documented historical injustice facing our First Peoples and racialized immigrants as well as mounting evidence of present day racial disparities which suggest otherwise. To most Canadians, these historical facts and present day statistical studies are mere signs of the failure of the racialized immigrants themselves to successfully integrate, and not consequences of deep-rooted racism and xenophobia. As such, our society responds to racial inequalities, not by addressing the underlying problems, but by ignoring or even erasing the inconvenient statistics and facts.

The fact – that due to the declining birth rage and an aging population – by next year every new entrance to the labour force will be an immigrant and that more than ever the future of our economy depends on immigrants (both permanent and temporary) is also irrelevant. A significant percentage of Canadians (42% of women and 36% of men) still believe that our Government is letting too many immigrants into Canada.

It is in this context that successive Federal Governments have been able to – with little challenge or much public outcry – enact regressive immigration and refugee policies that are aimed at deterring perspective immigrants who are deemed undesirable (i.e., racialized and poor) while limiting the rights of those who are already here. From the influx of the Chinese railroad workers in the late 19the century, to the arrival of the Chinese boat people in 1999, and from the incident of Komogata Maru to the recent arrival of the Tamil Refugees, Canadian immigration policy is never a product of any rational debate, but mere reactionary government response to irrational public fear and media hype about the threat posed by people of colour.

While racism has always played a key role in the framing of our policy, those who are engaged in the issue (including those who are “pro-immigrants”) remain reluctant to talk about race. Like it or not, our collective silence has served as a tacit endorsement of the racist agenda carried out in our name by our Government.

This presentation attempts to address:

• Why Race matters when discussing Canada’s Immigration Policy (with examples of both contemporary and historical race based policies)

• The consequences of our continuing refusal to deal with race and racism

• A proposal to start tackling the issue of race with a view to working together towards developing a just and fair immigration policy

Luin Goldring
York University, Department of Sociology

Conceptualizing Precarious Status in Canada

This presentation draws on a paper titled “Institutionalizing precarious migratory status in Canada” (Goldring, Berinstein and Berhnard 2009). The presentation focuses on the concept of precarious migratory status in Canada. In Canada, policies provide various avenues of authorized entry, but some entrants loose work and/or residence authorization and end up with variable forms of less-than-full immigration status. Binary conceptions of migration status (legal/illegal) do not adequately capture this national context, nor do they offer useful ways of conceptualizing and analyzing variable forms of irregular status and illegality, including documented illegality. The concept of precarious status is consistent with approaches that frame citizenship and illegality as historically produced, complex and changeable. Considering variable pathways to and forms of precarious status is also consistent with theorizing the boundaries between citizenship and illegality as blurred rather than bright (Cf. Bosniak). The concept also focuses attention on the institutionalized production of precarity in the legal terrain, which may intersect with other dimensions of precarity, e.g. precarious work.

Angus Grant
Legal Aid Ontario

(Click here to view presentation)

For over fifty years, the federal government has provided healthcare coverage to certain, narrowly defined groups of non-citizens who do not qualify for care under provincial healthcare programs. The Interim Federal Health Program (IFHP) was created under the authority of a vague 1957 Order in Council that has been neither updated nor elaborated upon since its inception. In Toussaint v. Canada, 2010 FC 810, the applicant, Nell Toussaint, has challenged her exclusion from IFHP coverage, arguing that her Charter rights under both s.7 and 15 have been violated, that her exclusion violates the very terms of the 1957 Order in Council and that it is incompatible with international legal instruments to which Canada is signatory. While the Federal Court has dismissed her application, the appeal of the decision will provide appellate courts the opportunity to define the rights of non-status individuals in Canada to necessary healthcare services.

Jill Hanley
McGill University, School of Social Work

Do Domestic Workers Belong?

Domestic work has been part of the Canadian fabric since our colonial founding and has long represented one of the most easily accessible routes for migration open to women. Whether rural to urban or south to north, women have turned to domestic work as an opportunity for income when their home communities were unable or unwilling to support them. This form of labour has always been marginalised, however, and is reliant on the existence of extreme inequalities of wealth. It occurs in the private sphere, their immigration status is often precarious, employment relationships are ambiguous and there remains the age-old question of whether women’s work is really work. In this presentation, we will consider whether domestic workers are offered belonging in the Canadian context: do they belong as citizens? as union members? as members of the family? as workers at all under our labour protection laws? On the other hand, we will explore the ways that domestic workers create belonging through social networks, ethnic and community associations and, increasingly, community-labour initiatives.

Daniel Hiebert
University of British Columbia, Department of Geography

I begin by reviewing the basic ingredients of immigration policy in general, and then turn to the case of recent policy in Canada.  Key recent turning points have been the internationalization of immigration (1960s), increased admission numbers (1980s), devolution of certain forms of immigrant selection to provinces (1990s), and the current growth of the temporary migration program.  With these policy decisions in mind, I provide a statistical overview of contemporary immigration in Canada.  This includes an overview of the most recent landings statistics, a discussion of the highly distinct geographical patterns of newcomer settlement in Canada, and a discussion of the economic outcomes of immigration.  I conclude by emphasizing the complexity of Canadian immigration and the fact that there is a great deal of misinformation about it.

France Houle
Université de Montréal, Faculté de droit

Mobility of Professionals and Tradespersons: Global Governance Beyond Human Rights? (Download the paper)

The success of public policies regarding greater mobility of professionals rests, for the most part, on the mutual recognition between States of the professional qualifications of these individuals.  The development of these policies is an interesting phenomenon to observe since it occurs in the margins of the right to mobility recognized by the Canadian Charter.   The new legal parameters are set by the strategy of the federal government on Smart Regulation and by the mechanisms of Global administrative law.

Through the means of intergovernmental agreements (intra and supragovernmental) and interstate cooperation accords, State governments determine the general principles which are used, thereafter, to harmonize internal regulatory systems.

The objective of the communication is twofold.  First, I will present different initiatives undertaken by States to explain the construction and the interaction between these new networks of emerging norms.  Second, I will propose a few hypotheses regarding the manner in which these networks transform the scope of several fundamental concepts in Canadian law, such as the right to mobility, the right to work and the autonomy of professional orders.

Andrea Kim
Student, University of Toronto, Faculty of Law

What does Canada owe to children in its immigration detention centres? A criticism and cross-cultural comparison

In almost all territories, illegal or unauthorized immigrants do not enjoy the full bundle of rights that can be exercised by full citizens. In recent years, immigration detention centres, where individuals facing deportation are held until a decision has been made to grant them visas or repatriate them to their country of departure, have been the subject of fierce scrutiny and criticism – several otherwise young and healthy individuals have died while being detained. Children, who are already vulnerable compared to adults, are at an even greater risk of suffering or not knowing which rights they do have. A recent study shows that children have suffered from mental and physical health difficulties during and after their detentions in immigration centres, and children often do not receive education during the waiting period. There are several other complications which arise when an individual seeking resident status is under the age of majority. For instance, what is the relationship – both theoretically and practically speaking – between the decision governing a parent’s status and that of the child? Should any special considerations be made for children in detention centres, seeing as they may have played less of an “active role” in entering the arrival territory and are frequently considered by many societies to be “less culpable”? What alternative arrangements or reforms could be undertaken to better safeguard children’s rights in this context?

This paper will first briefly introduce the subject of child immigrants with unauthorized or uncertain status, touching upon the work of some of the leading scholars in the field of children’s immigration. The paper will then turn to the literature on immigration detention centres, discussing their justifications and effects in the case of children in particular. In doing so, the paper will conduct a cross-cultural comparison of Canada, the United Kingdom, the United States and Australia in an attempt to identify policies and factors that can increase the risk of children’s rights abuses, or conversely, ameliorate their oftentimes unpleasant and stressful situation that can have longstanding effects post-detention. Finally, in light of this research, some recommendations will be made, having regard to Canada’s international children’s rights obligations.

Paula Kinoshita
Quantz Law Group

The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail over Human Rights Concerns? (Download the paper)

In this study, Delphine Nakache and Paula Kinoshita examine the Temporary Foreign Worker Program, in order to determine the Canadian and Albertan approaches to integrating and protecting these migrants. They consider three possible policy perspectives on the legal status of temporary foreign workers, according to whether the country of employment (1) sees temporary labour migration as an opportunity to integrate the workers; (2) is indifferent to their future position in society; or (3) tries to prevent their integration. In order to determine into which policy perspective Canada fits, the authors analyze three important integration mechanisms: employment, family unity and access to permanent residency. In the field of employment, there is a discrepancy between policy and practice in regard to temporary foreign workers’ rights. A significant factor is the restrictive nature of the work permit (temporary foreign workers are often tied to one job, one employer and one location), which can have the practical effect of limiting their employment rights and protections. Other problems include illegal recruitment practices, misinformation about migration opportunities and lack of enforcement mechanisms. In the context of employment, Canada seems indifferent to temporary foreign workers’ future position in society. In this presentation, I will be discussing the protection gaps that exist for temporary foreign workers in the context of employment law, including the employment contract, employment standards, workers’ compensation, and employment insurance.

Audrey Macklin
University of Toronto, Faculty of Law

Immigration and citizenship law sorts people into various binary categories: citizen vs. non-citizen; permanent vs. temporary;  smuggled vs. trafficked;  legal vs. illegal, etc.  My presentation will consist of a critical mapping exercise that describes how Canada peforms this classification exercise, explains the process by which the outcomes emerge as naturalized, and illustrates how the categories become more real than the people who occupy them.

Sarah Marsden
Student, University of British Columbia, Faculty of Law

Tracing Ethnocracy in Migrant Worker Regulation: An Assessment of Recent Developments in Canada’s Temporary Migration Policies

This paper will critically assess recent and proposed regulatory changes within the legal regime governing temporary migration to Canada in the context of Canada’s immigration law as a fundamental aspect of state development and social relations. I will seek to situate the proposed changes within the context of the history of the legal regulation of migrant labour in Canada, specifically with regard to its function in creating a growing class of flexible foreign labour and its use of language denoting aims, categories, and entitlements within the regulatory framework, including those pertaining to “protection” of foreign workers and the impact of these regulatory changes on migrant labour groups. I will draw on several theoretical tools articulated by scholars in the field of law and geography to argue that although the language of the proposed changes appears to equalize treatment of different worker groups and offer protection for foreign workers through enforcement, based on the socio-historical context of migration labour regulation in Canada and the interaction of various aspects of the immigration legal regime as a whole, the changes function to further entrench segregation and exclusion through the creation and maintenance of a racialized subclass of flexible labour which serves primarily to support the interests of employers. Specifically, I will attempt to show that Canada’s temporary migration regime supports a continuing history of Canada as an ethnocratic settler state in which the regulation of migrant workers maintains and creates boundaries within the territory of the state which demarcate racially identified space(s) through the regulation of labour.

Matthew Mendelsohn
University of Toronto, Mowat Centre for Policy Innovation

Employment Insurance (“EI”) is a regionally differentiated program. Access to coverage and levels of benefits differ across EI zones. Regional differentiation has traditionally been justified as an attempt to be responsive to local conditions and to foster regional economic develop. Recent demographic changes in Canada suggest that Charter-protected Canadians may be disadvantaged by the current regional distribution of benefits. Canada is being transformed by visible minority immigration to the largest urban areas, notably Greater Toronto, Vancouver, Calgary, Edmonton, and Montreal. The current EI system generally makes it more difficult for individuals in the largest urban regions to qualify for benefits. Given settlement by Charter-protected visible minorities in these large urban areas, regionally differentiated benefits may have an adverse effect on visible minorities. If this is correct, then a facially neutral law designed to aid particular regions is working to the disadvantage of one of the most vulnerable group of Canadians. This talk will provide preliminary discussion these issues. The focus will include a discussion of the impact of regionally differentiated benefits on visible minorities, the relevant constitutional issues, as well as the policy implications.

Sukanya Pillay
Canadian Civil Liberties Association

Are National Security Concerns Overriding the Principle of Non-Refoulement in Canada?

One of the strongest protections afforded to refugees and asylum seekers is the principle of non-refoulement in international law. Non-refoulement prohibits States from returning an individual to a place where there is a risk he or she will face serious harm including torture, cruel, inhuman or degrading treatment or punishment. Exceptions to this principle are narrow in refugee law, and arguably non-existent in human rights law. The principle of non-refoulement is legally binding upon Canada pursuant to international treaties and custom.

This paper will examine the status of non-refoulement in Canada post 9/11, and consider whether the commitment to non-refoulement is being undermined in the name of national security. First the paper will identify Canada’s obligations under non-refoulement and address some of the more controversial interpretations of Articles 33(1) and (2) of the 1951 UN Convention Relating to the Status of Refugees suggested by the Canadian Government. In this context, the paper will then analyze post 9/11 actions taken by Canada — including the Suresh decision, and subsequent cases of removal, return, and extradition – and argue that a strengthened commitment to protect refugees and asylum seekers from refoulement is required.

Doris Marie Provine
Arizona State University, School of Social Tranformation

Legal Status vs. Moral Status: Re-imagining Immigration Enforcement

Legal status has become the lynchpin of the immigration system in Canada and the United States, signaling the triumph of a bureaucratic approach to the vexing issues that immigration poses for governments.  In both countries, status categories hasten or prohibit entry, and they play an equally important role in determining who will be helped to stay and who will be deported.  This system can be criticized on many grounds, most often for its harshness and violation of basic human rights.  This paper offers a critique based, not on rights or sympathy, but on the moral element in domestic legal systems.  Moral considerations play an important role in the law that citizens apply to themselves, softening the effects of an over-strict application of legal rules.  What if these principles of proportionality and forgiveness were applied to immigrants who have entered without authorization or overstayed their right to remain?  The impact would be dramatic.  Immigrants’ investment in the communities in which they settle would be considered important, rather than nearly irrelevant as it is in the current hyper-legalistic paradigm.  While the application of domestic-law principles to immigration law sometimes occurs below the radar, in the decisions of front-line service providers and law-enforcement professionals, it should be more openly embraced as desirable development in immigration law.

Sean Rehaag
Osgoode Hall Law School

The substantive content of “every citizen of Canada” in the Charter: Are citizens whoever Parliament says they are? (Click here to view the presentation)

The Canadian Charter of Rights and Freedoms accords certain rights to “every citizen of Canada”, including the right to vote (s. 3) and the right to enter and remain in Canada (s. 6.1). This paper examines what the term “citizen” means in these sections.

One possible approach is to view citizenship as a creature of statute. From this perspective, a citizen is anyone who has been accorded citizenship by virtue of the Citizenship Act. According to this approach, Parliament could effectively circumvent the rights accorded to citizens in sections 3 and 6 of the Charter by using the Citizenship Act to define as non-citizens those whose section 3 and 6 rights prove inconvenient.

A second possible approach is to view the term citizen as having a substantive content that is — at least to some degree — independent of the Citizenship Act. From this perspective it is possible that some individuals who are not recognized as citizens under the Citizenship Act might nonetheless be entitled to rights accorded to citizens under section 3 and 6 of the Charter. Unlike under the first approach, from this perspective Parliament cannot (fully) circumvent section 3 and 6 rights by reworking the Citizenship Act.

Regardless of which approach of these two approaches one adopts, there may be other constitutional constraints on the degree to which Parliament can use the Citizenship Act to get around inconvenient section 3 and 6 rights. There are, for example, a series of questions that can be asked about whether particular definitions of citizens in the Citizenship Act comply with other Charter provisions including, most importantly, equality norms (s.15) and the right to life, liberty and the security of the person (s.7).

Using a series of hypothetical examples where Parliament tries to circumvent section 3 and section 6 rights by reworking the definition of citizens in the Citizenship Act, this paper will explore the substantive content of the term “every citizen of Canada” in the Charter.

Geraldine Sadoway
Parkdale Community Legal Services

Barriers to Attaining Citizenship (Click here to view the paper)

At first glance it seems completely reasonable that newcomers who become permanent residents of Canada should be expected to obtain Canadian citizenship. To do so they must speak English or French and pass a test on their knowledge of Canada’s history, government, geography, etc, and on their understanding of the rights and obligations of citizens. There is a study guide for this and opportunities to participate in classes to prepare. Yet there are some groups of permanent residents who are repeatedly failing the citizenship requirements despite long periods of living and working in Canada, and raising families here. After the age of 55 they are exempted from the test, but that means that for much of their working lives they are excluded from citizenship. I will be discussing barriers to citizenship for refugees and persons with disabilities in Canada and how we should be accommodating the particular issues facing newcomers in these groups who need to acquire citizenship.

Leslie Seidle
Institute for Research on Public Policy

(Click here to view presentation)

Leslie Seidle will provide an overview of intergovernmental immigration agreements as they relate to settlement services; discuss the implications of federal legal restrictions on who is qualified to receive those services; and provide some examples of steps provincial governments have taken to broaden access to settlement and integration programs. 

Myer Siemiatycki
Ryerson University

The Municipal Franchise & Social Inclusion (Click here to view the presentation)

This paper examines municipal voting rights as a marker of today’s debased urban citizenship regime. While immigrants overwhelmingly reside in cities, municipal voting rights in Canada today marginalize migrants and privilege property. The Canadian citizenship requirement for municipal voting eligibility disenfranchises huge numbers of immigrant urban residents, and impedes social inclusion. The call for ‘One Resident, One Vote’ invokes amore robust regime of urban citizenship.

Juliet Stumpf
Lewis and Clark Law School

Crimmigration and Discrimination (Click here to view the paper)

Criminal law and immigration law play different roles, one serving to regulate conduct within a community, and the other governing the entry and expulsion of individuals across borders.  From that perspective, it makes sense for localities to police criminal conduct and national governments to regulate immigration.  Both criminal law and immigration law also serve as systems for excluding individuals from the community.  This paper explores how crimmigration law, or the intersection of criminal and immigration law, influences when the law treats noncitizens differently from citizens.  Crimmigration law imposes harsher sanctions on noncitizens who commit traditional crimes, but also creates new crimes based on immigration-related conduct.  The use of the criminal law model seems to make space for localities to play a greater role in enforcing immigration law.  The paper will address how the criminalization of immigration law fashions a unique system of exclusion that uses the categories, procedures, institutions, and rhetoric of the criminal justice system to discriminate on the basis of citizenship.

The presentation will cover what protections are afforded to immigrants from discrimination under the Ontario Human Rights Code.  These protections flow from race related Human Rights Code grounds including: Race, Colour, Place of Origin, Citizenship, Language, Ancestry, and Ethnic Origin. Examples of efforts to address discrimination faced by immigrants employing Ontario Human Rights Code grounds will be identified and recommendations on how to do so will be discussed.

Phil Triadafilopoulos
School of Public Policy and Governance, University of Toronto

Non-citizen Voting in Toronto: A Case of Too Little, Too Soon? (Click here to view abstract)

Should non-citizens be given the right to vote in municipal elections in Toronto? A good many people believe they should. Arguments for the expansion of the municipal franchise to include non-citizen, permanent residents are strong, drawing as they do on deep democratic intuitions. And yet, the demand for the municipal franchise in Toronto is potentially problematic on the very same democratic grounds. On the one hand, it offers too little, providing immigrants’ political rights at a single level; set against full citizenship, local voting rights are at best a limited means of engaging in democratic politics. On the other hand, even these very limited rights may come too soon – before immigrants have acquired requisite language capabilities and familiarized themselves with the institutions, issues and norms of democratic politics. My paper expands on each of these points.

João Velloso
PhD student, University of Ottawa, Department of Criminology; Part-Time Professor at the Faculty of Social Sciences and the Faculty of Law

Punishment Along, Beyond and In Addition to the Criminal Law: Immigration Control and the Challenges to the Rule of Law (Download the presentation)

This paper aims at discussing the logics and forms of legal punishment (police measures and administrative sanctions) used to control established immigrants in Canada. Based on ethnographic fieldwork conducted at the Immigration and Refugee Board of Canada, my presentation focuses in particular on the role of discretionary power, (low) standards of proof and punitive practices in the regulation of immigration. I argue that forms of conflict resolution in non-criminal justice systems do not necessary lead to the implementation of more inclusive models of social control and/or to the adoption of a liberal and republican-oriented agenda in which non-citizens would be included in the already established rule of law (whether it is democratic or not). To the contrary, the available data suggest the configuration of a continuous state of exception within the rule of law in Canada where immigrants are often rather being ruled by law in an exclusive and punitive manner without the protection of the most basic civil rights or procedural guarantees generally available to citizens.

Cara Zwibel
Director of the Anti-Discrimination Program, Canadian Civil Liberties Association

Non-Citizen Voting Rights: A Constitutional Perspective (Download the paper)

The right to vote is the cornerstone of a democratic society. Voting allows individuals to participate in the governing of their society, thus recognizing their inherent dignity and worth. Moreover, knowing that the electorate can vote them in and out of office helps to keep government accountable. The right to vote was historically confined to a small group of privileged individuals but the franchise has been expanded to encompass all adult Canadian citizens with few exceptions, recognizing that it is the will of the people that legitimizes government. The fact that non-citizen residents remain excluded from the franchise is rarely discussed and judicial decisions on voting rights typically take this exclusion for granted. This paper will explore the legal arguments for extending the right to vote to non-citizens, particularly in municipal elections where decisions frequently affect the everyday lives of residents. It will consider the interplay between sections 3 and 15 of the Charter and argue that extending the franchise to non-citizens is not only good policy, it is good law.