Citizenship, Non-citizenship and the Rule of Law

Abstract

This article explores aspects of the relationship between citizenship and the rule of law in Canada. I do not advance the extravagant claim that the rule of law has no purchase on the state’s assertion of power over non-citizens. But I do contend that a kind of immigration exceptionalism dilutes the rule of law’s in relation to non-citizens.

I begin by setting out some uncontroversial attributes of the rule of law. I then provide snapshots from legislation, jurisprudence, and ‘law in action’ that exhibit countercurrents at work in migration law that divert, attenuate or dissipate the force of these rule of law principles. I begin on a high note, by considering the role played by citizenship in two Supreme Court of Canada judgments, Roncarelli v. Duplessis, and Baker v. Minister of Citizenship and Immigration. Next, I present vignettes from the ordinary operation of immigration and refugee law to illustrate the tenuous grasp of standard rule of law principles in this sphere. In particular, I focus on the rule-of-law implications of the Canada-US Safe Third Country Agreement, the Trump Administrations anti-refugee policies, and irregular border crossing by refugee claimants (asylum seekers) from the Untied States to Canada. Finally, I hypothesize about the source of this immigration exceptionalism.

Keywords: rule of law, refugees, migration, borders, Canada, Safe Third Country Agreement, Roncarelli, Baker