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Full-Text Articles in Law
Bordering The Constitution, Constituting The Border, Efrat Arbel
Bordering The Constitution, Constituting The Border, Efrat Arbel
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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 …
Between Protection And Punishment: The Irregular Arrival Regime In Canadian Refugee Law, Efrat Arbel
Between Protection And Punishment: The Irregular Arrival Regime In Canadian Refugee Law, Efrat Arbel
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This chapter questions the Canadian border’s reconstitution as a site of punishment for refugee claimants by examining the Designated Foreign National (DFN) regime, which permits the Canadian government to discipline foreign nationals for suspected violations of Canadian border laws by subjecting them to penalties that are formally classified as administrative, but amount to de facto punishment. These include mandatory arrest and detention, as well as compulsory reporting and ongoing document inspection. In this chapter, I examine the operation of the DFN regime in relation to other border measures, focusing specifically on the Canada-US Safe Third Country Agreement. I argue that …
Gendered Border Crossings, Efrat Arbel
Gendered Border Crossings, Efrat Arbel
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Nine years after the implementation of the Canada-US Safe Third Country Agreement (STCA), this chapter examines the STCA while asking the question: what about gender? How have initial concerns about the STCA’s adverse gender impact mapped onto the current, much-altered landscape of Canadian refugee law? The chapter revisits findings made in Bordering on Failure, a recent report I co-authored about the STCA, in an effort to read gender into its absence. I begin by charting an overview of the STCA’s operation and effect to provide context for discussion. I then revisit the central findings made in Bordering on Failure, paying …
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
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This article examines Canadian refugee law cases involving domestic violence, analyzed through a comparison with cases involving forced sterilization and genital cutting. Surveying 645 reported decisions, it suggests that Canadian adjudicators generally adopted different methods of analysis in refugee cases involving domestic violence, as compared with these other claims. The article argues that Canadian adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution in cultural difference. That is, adjudicators tended to recognize domestic violence claimants not as victims of persecutory practices but rather as victims of persecutory …
Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel
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This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …