This article belongs to the debate » 9/11 und Migration, Asyl und Staatsbürgerschaft
24 November 2021

The Long Shadow of 9/11

Canada and Migration Law, Two Decades Later

In the immediate aftermath of 9/11, I wrote about the securitization of migration for an edited volume about the impact of the attack on Canada. I did it again in 2011. This time, I mark the twenty-year anniversary of 9/11 with a blog.

At the broadest level, my thesis is that 9/11 exacerbated the chronic precarity of non-citizens’ status as legal subjects governed under the rule of law. In principle, the rule of law is indifferent to citizenship: after all, the legal subject is constituted through subjection to law, not to the state as such. The constraints imposed by the rule of law on the exercise of state power are critical to non-citizens, since they hold no currency in the democratic marketplace and have no voice in the creation of the laws that govern them.

And yet, the rule of law has always been insipid in the sphere of migration, and securitization diluted it even further. This is true across all jurisdictions, including those bound by human rights entrenched in constitutional texts. Arbitrariness and unaccountability are endemic, and practices that courts would not tolerate in other fields of law are routine. It’s this routine exceptionalism of migration law that 9/11 accelerated, amplified and leveraged, but did not initiate.

I chronicle this through a selection of post-9/11 examples in the spheres of legislation, institutions, and jurisprudence, in which the themes of broad and vague grants of executive power, arbitrary exercise of power and lack of accountability play out with an extravagance that post-9/11 securitization has enabled.

1. Legislative Reform

In the weeks following the attack, the justice department feverishly produced a raft of amendments to the Criminal Code to create new terrorism-related offences, expand existing police powers to arrest without warrant, detain without charge, and refuse disclosure of evidence.

Coincidentally, the immigration department had introduced a new comprehensive immigration and refugee statute shortly before 9/11. No amendments were proposed to the draft Immigration and Refugee Protection Act (IRPA) in its wake. The government did not revise IRPA to confer greater powers to deal with terrorism or national security. It didn’t need to. As I said at the time, immigration law had long permitted the state to do to non-citizens all that it proposed to do to citizens under the Criminal Code – and more. The minister already had authority to unilaterally designate a non-citizen as a threat to national security and issue a ‘security certificate’ against them that permitted automatic, indefinite, virtually unreviewable detention and, ultimately, deportation. A non-citizen could be deemed a terrorist threat if there were reasonable grounds to believe that they were in the past, present or may in the future become members of an organization that there were reasonable grounds to believe had committed, was committing or may in the future commit an act of violence. Judicial review of the Minister’s designation of the security certificate detainee was limited in scope, much of the evidence was secret, and the hearing itself could exclude the detainee and their counsel.

While 9/11 did not literally or immediately alter the text of Canadian immigration law, the government certainly drew on a durable reservoir of negative discourses about non-citizens, and leveraged the equation of terrorism with foreignness to advance other immigration and refugee policies that had little actual connection to national security or terrorism.

Refugee law furnishes a prominent example. Owing to the accident of geography, restrictive visa policies, and border externalization, relatively small numbers of asylum seekers can reach Canada to seek refugee protection. Exclusion happens elsewhere, by remote control, without spectacle or visible violence. So, while European states allowed Alan Kurdi and many in his family to drown in the Mediterranean in 2015, the Canadian government simply refused his relatives the visas that would have saved their lives and allowed them to reunite with family members in Canada.

Reducing the numbers of asylum seekers has been a long-standing policy objective of the Canadian government. Canada’s only land border is with the United States, and it is easier for an asylum seeker to reach the United States by land, air or water than to reach Canada directly. By the 1990s, a significant proportion of asylum seekers entered Canada from a port of entry at the US border. Inspired by the Dublin Regulation, Canada unsuccessfully attempted to persuade the United States in the late 1990s to enter into a safe third county agreement whereby asylum seekers would be required to claim refugee protection in the first country of arrival as between Canada and the United States. Since the flow of asylum seekers was disproportionately from south to north, the United States had no incentive to participate in a mechanism that would translate into increased numbers of asylum seekers in the United States.

September 11 changed that. The attackers were foreigners, although none entered the US as asylum seekers and, contrary to early rumours, none transited through Canada. As part of its response, the United States undertook to harden its northern border through a raft of border control measures that required Canadian cooperation. Canada seized this opportunity to extract a quid pro quo from US negotiators, namely accession to a Canada-US Safe Third Country Agreement (STCA). The agreement could not be promoted publicly by explicitly presenting refugees as a terrorist threat. After all, if the STCA purported to make Canada more secure by reducing the presence of asylum seekers in Canada, then it would follow that the US was made less secure by the concomitant increase in number of asylum seekers remaining on US soil. Having said that, the Canadian government was able to exploit the general unease and suspicion of non-citizens and the fact that refugee claimants are not screened in advance – and thus not fully legible to the state – to encourage a depiction of refugees as inherently risky.

The STCA went into effect on 29 December 2004. It has been subject to two constitutional challenges since then, each failing before the Federal Court of Appeal. The Supreme Court of Canada refused to hear an appeal from the first decision of the Federal Court of Appeal in 2009. A post-Trump challenge was launched again in 2018, and the applicants have sought leave to appeal to the Supreme Court of Canada from the second judgment of the Federal Court of Appeal in 2021.

Shortly after 9/11, I fretted that in the zeal to protect Canada from the menacing alien from without, we would veer into producing the alien within. I did not mean that literally, but I should have. From 2019-2015, the Conservative government pursued a campaign of making citizenship harder to get and easier to lose, culminating in the adoption of a UK-inspired citizenship revocation law directed at Canadian citizens who were alleged foreign fighters, or who were convicted of criminal offences related to national security. This, in effect, went beyond de facto repudiation of Canadian citizens abroad, and formally converted citizens into aliens. The law was repealed in 2017 by the subsequent Liberal government.

While the election of a Liberal government in 2015 dialled back xenophobic rhetoric, strategies to deter asylum seekers continue to trade on the burgeoning transnational security infrastructure. Beginning in WWII, Canada joined the ‘Five Eyes’ intelligence alliance with the US, UK, Canada, Australia and New Zealand, anchored by a treaty for joint cooperation in signals intelligence. The ‘war on terror’ enhanced inter-state cooperation among states in surveillance, intelligence gathering and information sharing. In the now-familiar tradition of ‘mission creep,’ Canada (among other partners) has leveraged the Five Eyes alliance in the service of border control. In 2019, Canada incorporated the Five Eyes alliance explicitly into its asylum-deterrence policy. Amendments to the Immigration and Refugee Protection Act now deny access to refugee determination to anyone who previously made a refugee claim in another Five Eyes state, based on data shared under the agreement. It does not matter whether the claim was heard, decided or refused by the other state. (existing law already precluded a person who has refugee protection elsewhere from refugee determination in Canada).

2. Institutions

One of the least discussed but most profound and deleterious changes wrought by 9/11 was a structural reorganization of the government department responsible for migration and border control. Prior to 2003, the Department of Citizenship and Immigration managed all aspects: temporary and permanent migration, international students, economic and family class immigrants, permanent residence, resettlement of refugees, humanitarian classes, as well as inadmissibility and enforcement at and inside the border.

As part of its securitization agenda post-9/11, the United States reconfigured its immigration bureaucracy, and Canada followed suit in 2003. Functions associated with immigration enforcement, namely border control, detention, surveillance, investigation and removal, were separated from overseas admissions, visa issuance, and other facilitative tasks, which remained with (what is now called) Immigration, Refugees and Citizenship Canada. Enforcement became the job of a new Canadian Border Services Agency (“CBSA”), which was assigned to the portfolio of the recently created Minister of Public Safety and Emergency Preparedness, which also encompassed the federal policing body (Royal Canadian Mounted Police, “RCMP”) and the national security agency (Canadian Security Intelligence Services, “CSIS”). In short, the government created a new federal law enforcement agency dedicated to migration and border control.

The segregation of immigration facilitation from border enforcement, and the alignment of border enforcement with policing and national security, gave institutional form to the securitization of migration. This had two related impacts on institutional culture. First, public servants in migration no longer circulated between divisions of a single bureaucracy focused on the admission of non-citizens (as beneficial and salutary), as well as divisions preoccupied with exclusion and expulsion in the name of public safety and security. Since 2003, uniformed CBSA officers encounter non-citizens more or less exclusively as vectors of risk, danger and potential harm, and never as refugees in need of protection, workers contributing to Canada’s economy, or family members reuniting with kin in Canada.

Secondly, co-locating CBSA with the RCMP and CSIS entrenched a law-enforcement mentality that continues to shape who applies to CBSA, who is hired, who is promoted, and the institutional norms that CBSA embraces internally and promotes externally. For example, the union representing CBSA officers lobbied successfully in 2007 to carry firearms. In the first decade after they were armed, CBSA officers discharged their guns 18 times – 11 times accidentally, and the remainder in order to kill animals. In other words, the need for a weapon – as opposed to the desire to carry a weapon – remains questionable. Over its almost twenty-year history, CBSA has increasingly been the subject of complaints of aggressive, abusive, intrusive and violent conduct. At least fifteen people have died while in CBSA custody since its formation. Despite this record, CBSA remains the only armed law enforcement agency in Canada with no independent, civilian-led oversight body.

3. Foreign Relations

Like many other states, Canada cooperated with the United States in its War on Terror. One strand of this alliance involved the subordination of state-citizen relationship between Canada and citizens (especially Muslim, Arab men) in favour of the political relationship between Canada and the United States. In practice, this meant abandoning Canadian citizens in Guantanamo Bay, in Syrian prisons, or in black sites, denying them consular protection or passports, and otherwise delaying or obstructing repatriation to Canada. Among others, this included Omar Khadr, a Canadian citizen apprehended and tortured by US forces at age fifteen in Afghanistan, and detained for nine years in Guantánamo Bay before he was repatriated to Canada.

The legacy of this functional repudiation of Canadian citizens abroad persists in the current unwillingness of the Canadian government to repatriate almost 50 Canadians held in northeast Syrian detention camps as alleged ISIS foreign fighters. Well before 9/11, Canada’s formal position was that consular protection was not a right of citizens, but extended as a matter of absolute and unfettered discretion. Canada’s conduct after September 11 has not departed from that position, but rather has demonstrated it in extremis, in circumstances where the Canadian government knew or had reason to know that Canadians were being detained and tortured or subject to cruel, inhuman or degrading treatment.

4. Jurisprudence

By coincidence, the Supreme Court of Canada heard an appeal in May 2001 by a Tamil non-citizen designated under a security certificate for fundraising activities allegedly linked to the Liberation Tigers of Tamil Eelam (LTTE). The issues in the Suresh case addressed the constitutionality of some aspects of the Security Certificate regime with the Canadian Charter of Rights and Freedoms. It issued its judgment in January 2002, barely four months after 9/11. The Court imposed additional procedural requirements on the system, but upheld the constitutionality of Ministerial discretion to return a person to face a substantial risk of torture ‘in exceptional circumstances.’ Unsurprisingly, the government advanced the position that every person held on a Security Certificate post-9/11 raised an exceptional circumstance warranting deportation to torture (although none have actually been deported to date). The Supreme Court of Canada remains the only apex court in the world that, in principle, authorizes deportation to torture. A subsequent constitutional challenge to the security certificate regime effectively endorsed the special advocate model devised by the UK Supreme Court in a challenge to that state’s regime. However, the Supreme Court of Canada declined to place meaningful limits on the length of detention for non-citizens inside or outside the national security context, an issue that remains salient today.

While other US allies successfully sought the release of their nationals (and, in some cases, permanent residents) from Guantanamo Bay, Canada made no efforts to do so. The Supreme Court of Canada ultimately ruled that Canada had violated Mr Khadr’s constitutional rights through its cooperation with US authorities while he was in detention, but declined to order Canada to request his repatriation. Consular protection, even in circumstances of human rights abuse, remains a matter of sovereign discretion more or less free from judicial encroachment.

Lower courts in Canada have, on occasion, resisted the erosion of  legal protections of citizens abroad, and non-citizens within Canada. But the Supreme Court of Canada has generally adopted a timid, proceduralist approach to constitutional interpretation of immigration and security-related cases post-9/11. This trend reveals a convergence of the deferential posture of the court toward the executive in relation to matters of national security, compounded by the deferential posture of the court toward the state in relation to non-citizens.

Conclusion

The Canadian trajectory over the last two decades suggests a multiplier effect of national security and citizenship status on the diminution of rule-of-law protections for non-citizens qua legal subjects. This applies both within and outside the spheres of national security, Canadian territory, and the Canadian Charter of Rights and Freedoms. Migration law is replete with vague and expansive grants of discretion. Institutional accountability mechanisms are weak or non-existent. Courts are reluctant to substantively restrain governmental action carried out under the rubric of national security and/or migration and tilt toward proceduralism if inaction is untenable. The general securitization of migration shades all matters touching non-citizens more deeply than before, even those seemingly far removed from any direct connection to national security. There are exceptions, of course, and some Canadian governments and some courts have been more attentive to the rule of law than others. And Canada’s reputation often benefits from comparison to the more spectacularly egregious conduct of other states. I look forward to telling a better story ten years from now.


SUGGESTED CITATION  Macklin, Audrey: The Long Shadow of 9/11: Canada and Migration Law, Two Decades Later, VerfBlog, 2021/11/24, https://verfassungsblog.de/os2-shadow/, DOI: 10.17176/20211124-185352-0.

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