Osgoode Hall Law Journal
Constitutional Law, Refugee Law, Refugee Rights, Border Law and Policy, Canada-U.S. Border, Canadian Charter of Rights and Freedoms
It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different ways. On one hand, it conceives of the border as a multiple, moving barrier that can be selectively positioned outside Canada’s territorial boundaries to expand state power outward. On the other hand, and at the same time, it conceives of the border as a singular and static barrier positioned at the edge of territory, and asserts this as the “actual” border. By simultaneously conceiving of the border in these two conflicting ways – and maintaining the fiction that Canada’s extraterritorial borders are not its “actual” borders – the MBS frustrates a basic principle of Canadian constitutional law. It not only deprives refugees of constitutional protection, but also more fundamentally, of legal and constitutional recognition. To illuminate the legal and conceptual violence of the MBS, I turn to the work of Hannah Arendt on the “right to have rights”. By reference to the Arendt’s work, I argue that the MBS not only re-charts Canada’s national boundary, but also alters the juridical relationships produced by that boundary, and the rights and duties they prescribe. I conclude by advocating for better alignment between Canada’s constitutional commitments and its border laws and policies. I argue that to give meaning to the “right to have rights” within Canada’s constitutional framework, and to ensure that those subject to the force of Canadian law may also benefit from its protection, Canada must ensure that wherever its legal borders go, the constitution follows.
Efrat Arbel, "Bordering the Constitution, Constituting the Border" (2016) 53:3 Osgoode Hall LJ 824.