A Personal and Constitutional Assessment of Section 34(1)(f) of the Immigration and Refugee Protection Act

A Personal and Constitutional Assessment of Section 34(1)(f) of the Immigration and Refugee Protection Act

By Hassan Rasmi

Ottawa is celebrating Canada’s 150^th anniversary of Confederation. Objectively, we will be celebrating the success of one of the world’s greatest countries. In fact, several ranking systems hail us as being the second best country in the world; the world’s most admirable and reputable nation; and even the friendliest Twitter population. Few countries compare. But what exactly is it about Canada that makes it as great as regarded? This paper examines, from a constitutional and personal lens, one of the principal reasons for that greatness: immigration. Indigenous groups and centuries of immigrant cultures have all formed what we, today, call Canada—our combined success in building this country is what makes this topic important. But it is equally important that we celebrate those cultures while concurrently celebrating the constitutional tool enabling their residence here in the first place.

In 1867, the Government passed the first legislative tool governing immigration: the Immigration Act. At the time, very few restrictions existed, and legislators regarded immigrants as an important economic strategy. Unfortunately, this “open-door” approach was not sustained for long, and our laws shifted towards intense discriminatory practices during, and immediately following, the world wars. However, in 1962, the government virtually eliminated racial discrimination from its legislation and later introduced a Points System that considered a number of qualities, such as whether the subject knew English or French. But that System was still far from perfect, and visa officers screened immigrants based on an entirely arbitrary “personal suitability” practice that eventually clogged the Federal Court with appeals.

Today, immigration is primarily governed by the Immigration and Refugee Protection Act (“IRPA”). Under IRPA’s section 34(1), an immigrant can be denied entry into Canada if they have, for example, committed a crime. One primary issue with this provision is manifested in section 34(1)(f), which denies admission to any person who has supported an organization that engages or will engage in acts of terrorism or subversion.

Section 34(1)(f) allows the Federal government to deny entry to almost anyone coming from a conflict-ridden part of the world. Consider the following: an elderly woman who stitched uniforms for armed rebels in Haile Mengistu’s Ethiopia; a man who acted as an informal contact for foreign journalists seeking interviews with anti-government guerillas in El Salvador; or, a man who was simply a member of the anti-apartheid African National Congress. The first two people faced deportation under section 34(1)(f)’s sweeping and excessive powers, despite being law-abiding citizens, giving service to our country, and never engaging in a single act of political violence. The third person is Nelson Mandela, who, as The Star cleverly put it, would have also likely been denied residence in Canada.

There are many problems with section 34. First, this provision potentially violates our Charter right to equality under section 15, and our right to life, liberty, and security of the person under section 7. Second, the application of section 34(1)(f) takes us back to discriminatory times when immigrants were denied entry based on the subjective judgment of a few autocratic bureaucrats. Third, this provision would be even more difficult to apply to hybrid groups. Specifically, what about individuals who are Canadian by descent, but who have grown up in a conflict-ridden part of the world and who came here at a later point in their lives? In other words, what about people like me, who I call “quasi-immigrants”? For the sake of conciseness, I will only focus on this third problem.

Legally, when I moved to Canada, I was a Canadian citizen. Realistically, I was an immigrant; for example, I had grown up elsewhere and I did not know anyone in my adoptive city of Toronto. In fact, I came here immediately following the Egyptian revolution, and had participated in demonstrations against the Mubarak government. Should I, then, be stripped of my Canadian citizenship for chanting “bread, freedom, and social equality”? Or would I be at an advantage for having been born to a Canadian parent? Regardless, what is concerning is that, in the strictest interpretation of the section, I am a quasi-immigrant who participated in anti-government demonstrations. I was not being subversive; I was exercising my right to free speech.

Immigrants coming from conflict-heavy areas seldom choose the groups they fall into. They do not choose to be born into political instability, they often cannot escape it, and they simply support what they believe is right. Their fate cannot be grounds for sweeping acts of discrimination against them, particularly when they pose no threat to our national security. Section 34(1)(f) is an unduly excessive provision that undermines how great our differences make us. Indeed, this year, we are celebrating not only 150 years of success, but 150 years of difference that made that success achievable.

This content has been updated on 31 January 2017 at 13 h 19 min.