- James Gacek
A ‘Catch-All’ Provision with Extreme Overreactions? The Legalistic Snares within Section 34 of Canad
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.
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.
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.