IMMIGRATIONHow 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.”

Enormous Power in the Hands of Judges
Canada’s Immigration and Refugee Protection Act, passed after 9/11 and in force since 2002, prohibits non-citizens from entering or staying in Canada if they have committed an offence that qualifies as “serious criminality.” While the law has been on the books for more than two decades, it was not until 2013 that the Supreme Court reminded Canadian judges that they must consider the immigration implications of their sentencing decisions.

“Before, the worst a judge could do was sentence a person to jail time,” said Abellan-Almenara. “Now they have the indirect power to deport someone and ban them from returning to the country. This is a far greater power than just sending someone to prison, where, in most cases, people can eventually be rehabilitated and leave.”

Moreover, since 2013, the Faster Removal of Foreign Criminals Act has limited the right of permanent residents to appeal a deportation order.

But not all judges have interpreted their new powers in the same way. Abellan-Almenara wanted to dissect their judgments.

“Ever since I was a child, I’ve been fascinated by how judges’ think,” she said. “Their reasoning is like a black box.”

She considers the question particularly germane in view of the serious consequences for immigrants.

Deep Dive into Case Law
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