How Canadian Immigration Law Turns Judges into Border Guards
subcategories, based on their attitude towards their new role as “borderworkers.”
The first group accepts the borderworker function and approaches it in one of three ways—as “builders,” “dismantlers” or “maintainers.”
The builders use their authority to strengthen the border. They seem to be happy with their new power and “apply it to reinforce and extend the border beyond what is strictly provided for by the law,” Abellan-Almenara said.
On the other hand, the dismantlers try to avoid, mitigate or minimize the immigration consequences of their decisions, sometimes in fairly creative ways. “One of the criteria that make a crime a case of ‘serious criminality’ is a sentence of more than six months,” Abellan-Almenara explained. “So some judges will impose sentences below this threshold. For example, they might give two sentences of six months less a day instead of a one-year sentence.”
The maintainers, who fall between these two positions, are the largest of these three groups: “They passively accept that their decisions will have immigration consequences for the person and don’t really factor them into their rulings,” she explained.
The other major category consists of judges who refuse to be borderworkers. They fall into three symbolic groups—the deaf, the dumb and the blind. All three disregard the possible deportation consequences of their decisions.
“These judges continue to see their role as confined to criminal justice and consider immigration issues to be outside their purview, which doesn’t prevent the system from imposing consequences at the end of the day,” Abellan-Almenara said.
In the second part of her thesis, Abellan-Almenara plans to interview judges to gain more insight into the thinking behind their decisions.
Advocating for Change
There are more crimes that can lead to deportation than one might think. “What is defined as serious criminality isn’t just serial murders, terrorism or drug trafficking,” Abellan-Almenara explained. “According to some estimates, close to 75 per cent of the Criminal Code falls into this category.”
An umbrella can be considered a weapon, so hitting someone with one qualifies as assault with a weapon and hence as serious criminality. “I think the concept is so broad as to be meaningless,” Abellan-Almenara argued.
In a political environment where immigrants are often scapegoated, Abellan-Almenara hopes her work will be useful to civil society organizations that defend them. She works informally with the Solutions Justes legal clinic.
“We’re advocating for a law that recognizes that deportation is a disproportionate punishment, especially for long-term residents,” she said. “My thesis will provide empirical evidence to support this argument.”
