Metropolis Project: “Justice, Policing and Security”
“What are the implications of a perimeter approach to security for Canadian
Border and Immigration practices?” 1
Emily Gilbert
Associate Professor
Program in Canadian Studies and Department of Geography
University of Toronto
[email protected]
I: Introduction: Security Perimeter, Immigration and Border
In the wake of September 11, 2001, the idea of creating a security perimeter encircling
Canada and the United States intensified. Reeling from the terrorist attacks, the US was
gripped with security concerns. Canada was also worried about security, but the delays at
the US border that threatened the transnational just-in-time economy were of even greater
immediate concern. Attention turned to how Canadian business would cope in the new
paradigm in which, as Senator Hilary Clinton observed, ‘security trumps trade,’
especially when there were ongoing concerns that Canada’s more ‘lax’ immigration
policies made the country a danger to the US. The case of Ahmed Ressam was a
flashpoint in border relations. In December, 1999 Ressam had been found traveling from
Canada to the US with a trunk-load of explosives intended to blow up the LA airport. As
many scholars have noted, US concerns over Canadian immigration were exacerbated
because Ressam had evaded deportation after the denial of his refugee claim and was
using false identification papers to remain in Canada. The alarm resurfaced after 9/11
when (false) allegations proliferated that several of the terrorists passed through Canada
(Laxer 2003: 244–46; Clarkson 2003: 76). Even into 2005 such misperceptions persisted,
eg in statements made by Newt Gingrich, Republican Speaker in the House of
Representatives (later retracted after a formal apology was sought by Canadian
Ambassador, Frank McKenna).
In an effort to appease these ongoing US security concerns, Canada has promoted
a security perimeter that would bring Canadian immigration, refugee and border policies
more in line with those of the US (Gabriel et al 2003). This would help solidify the
external border of the two countries, while removing pressures from their shared land
borders, which could then remain relatively open to the passage of people and goods.
This is the main understanding of what a security perimeter would involve, although
there are numerous variations across the multiple proposals that have been advanced. For
the most part, the external border to Canada and the US would be brought more into line
and solidified, while the internal border that extends largely across the 49th parallel,
would fade in importance. Most proposals, however, do not suggest that this border
1
Many thanks to all those who participated in the seminar discussion that arose from this paper. The
contributions were extremely constructive. I have sought to include as many of the comments and critiques
in here as possible. Any remaining errors are the sole responsibility of the author.
would entirely disappear. Also, most advocates of a security perimeter insist that national
sovereignty would not be undermined, so the impact of an external perimeter is
ambiguous. The looseness of these definitions is important to keep in mind when
considering the multiple proposals that have been put forth. Moreover, what role Mexico
would play in is also debated. For reasons similar to Canada, Mexico has also strongly
supported a security perimeter. Most of the proposals emanating from Canada, however,
are primarily concerned with the Canada-US bilateral relationship (Gilbert, 2005).
Mexico’s full participation is anticipated as a future possibility, but only once security
arrangements have been consolidated between Canada and the US (in the same way that
free trade was first a bilateral agreement, before assuming its current trilateral form). If
Mexico were to be included, there is no question that the shape of the security perimeter
would change significantly.
The unfolding of these debates needs to be established. Suggestions for greater
security integration predate 9/11, but it is only really since the terrorist attacks that
progress has accelerated in Canada-US relations (Laxer 2003: 248; Gabriel et al 2003).
Within weeks Michael Hart and Bill Dymond (2001) were pushing deeper integration.
Various models of economic integration have been proposed—including a customs
union, a common market and a monetary union—but pundits have unanimously agreed
that that the agreement would have to extend beyond the economy to address US
concerns (Gilbert, 2005). A “Borders Series” of papers was started by the CD Howe
institute. The most notable contribution was by Wendy Dobson (2002), who argued that
only by presenting the US with a ‘big idea’ around security and energy integration would
trade remain open. A similar prognosis was presented by Thomas D’Aquino (2003) of the
Canadian Council for Chief Executives. Other groups also advocated for further
integration of security and border management, such as the Coalition for Secure and
Trade-Efficient Borders, formed by Canadian business interests in November 2001.
Alongside these statement by business advocates, public and political figures insisted on
the need for drawing a security perimeter around North America, including leader of the
Alliance Party, Stockwell Day; leader of the Conservative Party, Joe Clark; and Allan
Gotlieb, former Canadian Ambassador to the United States.
Support for deeper economic and security integration, however, has not been
ubiquitous. Public policy institutes such as the Council of Canadians and the Canadian
Centre for Policy Alternatives are fierce opponents to the deeper integration agenda (eg
Barlow, 2005; Campbell and Finn, 2006). Scholars have also begun to critically address
the implications of drawing together economic and security concerns, with particular
attention on the proposed security perimeter (eg Andreas and Biersteker, 2003; Clarkson,
2003; Clarkson and Banda, 2007; Gabriel and Macdonald, 2004; Gilbert, 2005, 2007;
Laxer, 2003; Staples, 2007). A common concern is that security harmonization leads to
the end of sovereignty or the distinctiveness of national policies (Laxer, 2003; Clarkson,
2003; Staples, 2007). Others see the current proposals for deeper integration as
continuous with the free trade debates of the 1980s, with many of the same key players
using security concerns as a wedge issue to further that agenda (Gabriel and Macdonald,
2004; Gilbert, 2005). The negative impact that harmonizing Canada’s immigration and
border policies with those of the US will have on human rights has been raised by others
(Aiken, 2007).
2
Academic response may be mixed, but there are numerous domestic, bilateral and
trilateral agreements that have been signed in the last decade that bring Canada and the
US (and sometimes Mexico) into a quasi-security perimeter. These include Canada’s
domestic Anti-Terrorism Act Bill C-36, which was designed, in part, to assuage US
homeland security concerns. The Canada-US 30-point Smart Border Action Plan
harmonizes some immigration policies, as does Canada’s revised Immigration and
Refugee Protection Act (2001). The Security and Prosperity Partnership, signed between
Canada, the US and Mexico, draws together economic and security interests of the three
countries. There is thus clearly evidence that aspects of a security perimeter are in
process. At the same time, however, a security perimeter is not a fait accompli. There
continue to be discrepancies in the security landscapes of the three countries, and
domestic policies and trans-national policies are often in contradiction. The 2002
National Security Strategy of the George W Bush administration, for example, presents a
very strong unilateralist agenda. And the US continues to be highly suspicious of both
Canada and Mexico’s immigration and border policies, particularly vis-à-vis the latter, as
the ongoing caustic debates around undocumented workers indicates. Moreover, each
country has made significant security and military investment at the borders, even whilst
promoting a common security perimeter that would effectively efface internal borders.
The mandate of this paper is to review the current academic literature on a
security perimeter and its implications for the Canadian border and immigration, and then
to identify some lacunae in this literature and opportunities for future research initiatives.
As will become clear, while a security perimeter has not been achieved, there is certainly
a complicated process of “rebordering” underway which entails both border hardening
and softening (Andreas and Biersteker, 2003). Some of this complexity is captured in
just-launched Canadian Broadcasting Corporation mini-series, The Border, which
capitalizes on different security mentalities associated with the Canadian-US border to
highlight questions around power-sharing, jurisdictional sovereignty and humanitarian
issues. As we shall see below, in quite different ways, academics and policy makers have
been grappling with similar kinds of questions. What is absolutely clear from this
research is that there are multiple pressures both for and against a security perimeter. A
security perimeter is hence neither inevitable nor closed to debate. This paper is intended
to provide the background necessary to further deliberate the merits and demerits of
security integration so that amendments can be proposed, or where necessary, rejected
entirely.
II: Research Landscape on Security Perimeter, Immigration and Border
Security cooperation between Canada and the US is longstanding, solidified during the
Cold War when concerns for continental defence were high. Prior to 9/11, revisions to
border security measures were already underway to rework Canada-US border relations.
The Shared Border Accord of 1995, for example, sought to harmonize visa requirements
for foreign nationals, although policies continue to diverge for over forty countries
(Aiken 2007: 190). As scholars have demonstrated, however, the post-9/11 period has
been a turning point for security cooperation, particularly at the border. Quickly on the
heels of the attacks, on December 3, 2001, the US and Canada issued a Joint Statement
3
on Border Security and Regional Migration Issues (JSBSRMI) signed by the Canadian
solicitor general, Lawrence MacAulay; Minister of Citizenship and Immigration Elinor
Caplan; and the US attorney general John Ashcroft. James Laxer describes the sweeping
changes that the JSBSRMI introduced: common visitor visa requirements; coordinated
immigration measures and immigration control officers, including Integrated Border
Enforcement Teams (IBETs); a safe third country agreement; developing common
biometric identifiers; information sharing regarding airplane passenger lists; and
information sharing between the RCMP and FBI (Laxer 2003: 254–255).
Many of these programs, and others, were enshrined with the formal 30-Point
Smart Border Action Plan (SBAP), signed into being on 12 December, 2001 by
Homeland Security Advisor Tom Ridge and Deputy Prime Minister John Manley. 2 The
ambitious aim of this accord was to enhance bilateral border cooperation to “develop a
zone of confidence against terrorist activity.” The four pillars of the SBAP are to 1)
secure the flow of people; 2) secure the flow of goods; 3) invest in secure infrastructure;
and 4) coordinate and share information in the enforcement of these objectives. With the
Security and Prosperity Partnership (SPP) agreement signed by the leaders of Canada,
Mexico and the US in March, 2005, much of this security agenda took on a trilateral
dimension, although more explicitly yoked to economic initiatives. The three pillars of
the SPP are expansive: 1) security; 2) prosperity; and 3) quality of life. These broad
themes encompass a wide-range of issues, from joint pre-clearance border policies, to the
harmonization of external economic tariffs, to joint health initiatives on infectious
disease. Specific targets were established for Ministerial working groups to address, and
annual reports were mandated.
These agreements have numerous implications for the border and immigration
that and scholars have addressed four of these in particular: 1) border security; 2) the
NEXUS program; 3) the safe third-country agreement; and 4) information sharing.
Border security is a crucial component of these agreements. The JSBSRMI and the SBAP
expressed a commitment to joint border policing by the RCMP and the US border patrol,
alongside other security forces, and the expansion of Integrated Border Enforcement
Teams (IBETs) (Laxer 2003: 255). IBETs are self-described as a “cooperative bilateral
initiative” that involve collaboration between the RCMP; the Canada Border Services
Agency; US Customs and Border Protection/Office of Border Patrol; US Bureau of
Immigration and Customs Enforcement; and the US Coast Guard. The results, as Meyers
(2003) and Webb (2006) examine, is more interoperability between Canadian and US
forces, with joint participation in counterterrorism exercises, eg around a biochemical
attack. 3 It has also been made possible for US and Canadian troops to be deployed across
the border in an emergency situation (Laxer 2003: 271). The SPP also affirms the need to
enhance border and security cooperation, where possible across the three countries.
Scholars have begun to examine the impact of this security cooperation on
understanding the border and on the mobility of the population. In addition to more
coordinated security, the JSBSRMI, the SBAP and the SPP each affirms the importance
2
In March 2002, the US signed a comparable agreement with Mexico, the US-Mexico Border Partnership
Agreement.
3
Interoperability has its limits. Canada has still not formally joined the US-led NORTHCOM, although it
participates peripherally through NORAD. A national equivalent, CANCOM, was set up in 2005 to bring
military and border security together (Staples 2007: 169).
4
of facilitating ‘legitimate’ cross-border travel, while making border crossing difficult for
more ‘risky’ travelers. Drawing upon similar initiatives implemented in the 1990s under
the context of NAFTA, these agreements expand the joint NEXUS border program
introduced in 2000. 4 ‘Legitimate’ travelers—usually members of the business class—
enroll in pre-registration programs; they are subject to risk assessment by the
participatory countries, and their personal data is entered into security databases. Once
cleared, members are issued with a biometric card used to authenticate their identity at
the border. After the signing of the SBAP, dedicated lanes for NEXUS members were
made available at numerous land borders, and self-service kiosks with iris-scanners have
now been installed at large airports. A marine program is in trial stage. NEXUS is
currently operated by the Canada Border Services Agency and United States Customs
and Border Protection. A similar program to facilitate commercial flows at land borders,
Free and Secure Trade (FAST), has also been put in place. FAST exists at both the
Canada-US and US-Mexico borders. FAST is designed to harmonize the processes
around commercial shipments, and applies to drivers, importers and carriers, each of
whom has to be registered in the program.
The rationale of the NEXUS and FAST programs is to provide ‘legitimate’
travelers with mechanisms for expedited border- crossing, so that resources can be
focused on those deemed to be security threats. The joint programs provide a coherence
to border and immigration policies, and thus provide the semblance of a security
perimeter—a principle that has been reinforced by the SPP. As numerous scholars have
emphasized, however, only those who are deemed ‘legitimate’ (mostly business) travelers
are provided expedited access across the border (Bhandar, 2004; Sparke, 2006; Gilbert,
2007). It is the rational, responsible, entrepreneurial citizen who is privileged—the citizen
who is able to self-regulate and self-monitor their behaviour, and comply with security
protocol (Bhandar, 2004; Gilbert 2007). These principles have been extended into some
employment sectors; eg dock workers, where security clearance has become a necessary
condition of employment, and has been used to erode worker rights (Cowen, 2007).
These border policies are thus creating a kind of differentiated, privileged citizenship
with respect to mobility. So although an agreement like the SPP emphasizes the
importance of the global economy, only some citizens are able to maximize their crossborder potential. This is further exacerbated in that when it comes to skilled labour, the
SPP promotes the expansion of temporary worker programs which offer workers only
limited border mobility, and no opportunity to acquire the same labour and human rights
as full citizens (Gilbert 2007).
The principle of “safe third country” is another prong in the harmonization of
border policies affirmed by the IJSBMRMI and SBAP, and later formalized with the
signing of the Canada-US Safe Third Country Agreement (STCA) on 5 December,
2002—which came into effect on December 29, 2004 (Pratt 2005: 198). Asylum seekers
at the Canada-US land border were obliged to seek asylum in the first “safe” country they
reach (with some exceptions). The agreement was implemented to put a stop of what both
governments have called “asylum shoppers”—that is, preventing claimants from making
a second appeal for asylum when rejected by one of the two countries. In particular, the
4
NEXUS is modeled on the US-Mexico “Secure Electronic Network for Travelers Rapid Inspection”
(SENTRI) program that was instituted as part of hardening the border (Sparke 2006: 168). SENTRI
continues to exist at several US-Mexico land borders.
5
agreement is designed to stop asylum seekers rejected in the US from making a second
appeal to Canada with its more “lax” rules (Ryman 2007: 4). As Sarah Ryman notes, over
half the asylum seekers in Canada in 2001 had first traveled to the US (Ryman 2007: 3).
The impact on refugee claims at the border has been dramatic; by 2005 there had been a
51% reduction in claims at the land border (CCR 2007; Aiken 2007: 190). Refugee
seekers from Latin America are especially implicated, as geography dictates that those
who traverse the continent by land cannot help but travel through the US on their way to
Canada. Scholars have raised concerns that Canada, in pushing for the agreement, is
attempting to abrogate its responsibilities to refugees under UN conventions which
guarantees refugees a right to a hearing (Macklin, 2003). Instead of amending its own
domestic policies, Canada is returning refugees to the US which has lower standards of
due process protection, and greater likelihood of detention and deportation (Aiken 2007:
189). In fact, in hearings before the Standing Committee on Immigration and Citizenship,
the Canadian Council of Refugees (CCR) has challenged the US’s designation as a “safe
third country” (CCR 2007). In November, 2007 the Federal Court appeared to concur
with this assessment when it struck down the agreement.
Another problematic aspect of the SBA and the SPP is their promotion of
information sharing. These issues came to the fore with the ‘extraordinary rendition’ of
Maher Arar, a Canadian citizen, to Syria despite prior knowledge of the likelihood of his
torture (Mutimer, 2007). Arar was held in Syria for just over a year, and was regularly
tortured. The Commission of Inquiry into the incident has confirmed the role of CanadaUS information sharing in Arar’s deportation; the US acted, at least in part, on
information provided by the RCMP that presented Arar in a deliberately discriminatory
and misleading way. Webb notes that “there were regular joint information meetings in
Canada, and the US agencies were provided with CDs containing the entire investigation
file, which included twenty-six hard-disk drives that the RCMP had seized from seven
raids, but did not have the manpower to analyze themselves” (Webb 2006: 47).
Acknowledgement of Canadian complicity and wrongdoing in the Arar case has resulted
in apologies issued by both the RCMP and the federal government. Canada has also
negotiated an agreement with the US that if a Canadian citizen is to be deported to a third
country, it will be notified.
Concerns persist, however, that national security matters are embedded in racial
profiling. The Commission of Inquiry revealed that Arar’s case was not unique, and that
he was not the only one deported to Syria. It also made recommendations that security
agencies actively monitor against racial profiling (Roach 2007: 15). This is difficult,
however, as, unlike with crime statistics, threats to national security “are explicitly
organized according to nationality and ethnicity (with the exception of the category of
‘major outlaw motorcycle gangs’)” (Pratt 2005: 207; emphasis in the original). There has
hence been ongoing opposition to the sharing of airline passenger information which was
first allowed by the SBAP, following amendments to the Aeronautics Act and the
Customs Act (Webb 2006: 47). Since then the Public Safety Act of 2004 “permits
designated federal officials to have access to airline passenger lists and reservations
information for a full week—without a warrant—for the purposes of national security and
transportation security, broadly defined” (Aiken 2007: 194). The SPP affirms a plan to
establish common procedures for passenger screening and information sharing on highrisk travelers. In June, 2007, Canada implemented a domestic “Passenger Protect”
6
program, a Canadian “no-fly list” of people deemed high security risks. Scholars have
expressed concerns that the data-mining of aviation passenger lists, the no-fly list and the
information sharing will be subject to racial profiling (Webb, 2006; Roach, 2007).
The NEXUS program, the safe third country agreement, and information sharing
are all examples of increasing harmonization between Canada and the US around border
and immigration principles, and an indication of how the two countries are being drawn
together in a security perimeter. Changes to Canadian domestic policy, particularly
around immigration, also involve greater convergence between the two countries. In
November, 2001 changes to the Immigration and Refugee Protection Act (IRPA) were
approved, and brought into force June 28, 2002. Although much was made of the revised
IRPA, most of the changes introduced were long in the making (Aiken 2007: 186), and
were attempts to bring the legislation in line with current immigration practice
(Dauvergne 2003: 729). But with the heated post-9/11 discourse about ‘lax’ immigration
policies, revisions to the IRPA were framed as part of Canada’s war on terror and as a
mechanism for appeasing US concerns. Then Leader of the Opposition, Stockwell Day,
for example, explicitly linked refugee claimants with terrorism (Laxer 2003: 247). While
Immigration minister Elinor Caplan challenged Day’s statements, she also emphasized
that a tough stand on immigration was needed: “to close the back door to those who
would abuse our rules, in order to open the front door wider to those who would come to
us from around the world to help us build our country” (cited in Aiken 2007: 185–186).
The IRPA brought in numerous changes to immigration and refugee policies,
including ones that depart from US policy, including a more expansive definition of the
family (Dauvergne, 2003). Other changes include modifications to the immigration points
system because of concerns that the set pass score of 75 makes immigration for skilled
workers difficult; the pass mark was reduced to 67 (Gabriel 2006: 199). There was also a
degree of nuance introduced, in that a temporary entry permit could be issued to someone
ruled inadmissible for reasons of criminality, health or other reasons (Pratt 205: 180).
On the other hand, as scholars have demonstrated, many changes relating to
security that have institutionalized through IRPA have had a more questionable impact on
human rights, especially for refugees and non-citizens. Security inadmissibility, which
already included ‘terrorist’ membership was broadened, and those found inadmissible for
national security reasons or serious criminality (even permanent residents) lost all right of
appeal, meaning that they could be deported without a hearing—in contravention of UN
statements on the right to refugee appeal (Aiken 2007: 187). Refugees and non-citizens
can be deported to countries where torture is likely in cases where national security risks
are perceived as outweighing threats to the individual—in direct contravention an
absolute prohibition on refoulement by UN conventions (Pratt 2005: 154–155).
Immigration officers have acquired greater and more expansive powers vis-à-vis noncitizens, who can be examined at any time (not just at the border), and who can now be
held without warrant (Aiken 2007: 186). Moreover, more refugee determination cases are
being monitored by Citizenship and Immigration Canada (Pratt 2005: 175), while
removal orders have been strengthened, and more resources devoted to deportation.
While the process of hearing refugee claimants has been accelerated, decisions are now
made by a one-member panel (not two), providing that individual with more
discretionary power over decision-making (Pratt 2005: 4; see also Pue, 2003).
7
Aiken has cautioned that Canadian policies have “raised concerns that the
Canadian government was on the brink of caving in to ongoing pressure from
Washington to restrict the refugee program in a manner that will threaten the integrity
and fairness of the entire system” (Aiken 2007: 192). The impact on immigrants has been
significant. The numbers of detainees has increased substantially, with an average of 45%
of immigration detainees in 2003 being refugee claimants (Aiken 2007: 187). Test-case
litigation is underway in the more than 30 suits launched by refugees and non-citizens
whose applications for permanent residency have been delayed or denied because of
security reasons (Aiken 2007: 201). The revised IRPA legislation, Anna Pratt argues, is
therefore less about protecting refugees—as its title would suggest—than about
protecting the Canadian public and the integrity of national borders (Pratt 2005: 5). The
false associations being made between refugees and national security are reinforced, just
as they are in other security documents such as the 2004 National Security Strategy,
Securing an Open Society: Canada’s National Security Policy, which states the
importance of refugee reform to national security (Aiken 2007: 192).
One of the first measures to be implemented in the wake of the IRPA was a new,
high-tech identity document for landed residents designed to replace the IM 1000, Record
of Landing (Browne, 2005). Simone Browne describes the biometric-encoded permanent
resident card—with the capacity to store 1.1 megabytes of data (about 500 pages)—as a
form of invasive “surveillance technology” that also works to “‘nationalize’ immigrants
bodies by codifying place of birth and country code” which is used as a kind of racial
profiling (Browne 2005: 425). More sweeping proposals to introduce a national identity
card were also introduced by immigration minister Denis Coderre, although these failed
to receive significant support by the public. The Privacy Commissioner of Canada also
expressed concerns about the pervasive use of biometric identifiers, and how a national
security card would erode the division between public and private spheres (Browne 2005:
431). Biometrics, however, have been seen as a persistent tool in the war on terror. The
JSBSRMI and the SBAP both affirm the use of biometric identification to security
identity. The use of biometrics has been an important prong in the US war on terror,
affirmed by policies such as US PATRIOT ACT and US-VISIT.
One of the most controversial aspects of current immigration policy, and decried
by human rights advocates, is the use of “security certificates,” issued under the IRPA.
Security certificates date back to the late 1970s, and assumed their present shape in the
1990s (Aiken, 2007). Their use was affirmed by the revised IRPA of 2001 for noncitizens, permanent residents or refugee claimants who are deemed a national security
threat. With the revised legislation, only the signature of the Minister of Public Safety is
required, whereas previously two signatures were mandatory, providing fewer safeguards
around their use. Foreign nationals are detained, for indefinite periods, while their
immigration hearings are suspended. Evidence against them is heard in camera; detainees
and their lawyers are only provided with a summary of the evidence, and are unable to
cross-witness (Roach, 2007). The decision of the Federal Court cannot be appealed. Five
men have been detained on security certificates since 2000: Hassan Almrei; Adil
Charkaoui; Mohamed Harkat; Mahmoud Jaballah; and Mohammad Mahjoub—that all
men are Arab is a clear example of racial profiling, argues Sherene Razack (2007). Three
continue to be detained, while two have recently been released on bail, under strict
conditions. A ruling by the Federal Court of Appeal in April, 2004—in response to an
8
appeal made by Charkaoui—validated the constitutionality of the security certificates.
But in February, 2007, in a 9-0 decision, the courts unanimously struck down the
certificates as contravening sections 7, 9 and 10 of the Charter of Rights and Freedoms.
The ruling has been suspended for year, during which time Parliament has the
opportunity to rewrite the law. 5
A final prong in the federal government’s approach to borders and immigration is
the Anti-terrorism Act (ATA), Bill C-36, which was hurriedly introduced and received
royal assent on December 18, 2001 when it became part of the Criminal Code. The bill
was a response to domestic concern for terrorism, but the announcements around the bill
made it clear that it was also introduced as a corollary to US Homeland Security, to draw
Canada into closer harmony with US immigration procedures so as to appease US
security concerns. The preamble even states the importance of “to keep the Canada-U.S.
border secure and open to legitimate trade” (see Gilbert, 2005). The ATA was hotly
contested by civil society groups, representatives of visible minorities, refugees and legal
scholars among others (see Daniels et al 2001; also Daubney et al, 2002). The act
provides a legal definition of terrorism, and hence makes terrorism part of the criminal
code; it identifies new criminal offences; it legitimizes more police powers, eg around
electronic surveillance and provides then with more resources to prevent terrorism; and it
permits terrorist assets to be frozen, while knowingly funding terrorism is also expressly
forbidden (Roach, 2003). The new “preventative arrest” powers enables police to detain
people for up to 72 hours, without a warrant and without charge, if they are suspected of
conducting a terrorist act (Laxer 2003: 252). There are multiple, ongoing concerns with
provisions of Bill-C36 around clarity, accountability, reach, and definitions, eg that the
definition of terrorism is too broad, and that the power to define a terrorist organization
resides in the hands of Cabinet (Pue, 2003; Roach, 2006).
Thanks to the advocacy of civil rights groups, however, Bill C-36 was subject to
several amendments before it was approved, including a slight narrowing of the
definition of terrorism (Roach, 2003; Daniels et al 2001). In order to temper the haste
with which the legislation was implemented, a mandatory three-year review of the bill
was ordered, as well as a five-year sunset-clause on the provisions regarding investigative
hearings and preventative arrests. Because of delays arising from the dissolution of
parliament, the third year review, anticipated in 2005, was not completed until March
2007 (see Roach, 2007). The sunset-clause provisions for investigative hearings and
preventative arrest in Bill C-36 were set to expire in February, 2007. The federal
Conservative government introduced motions in the House of Commons and Senate to
renew the provisions, but was voted down in the House of Commons, 159 to 124. The
lateness of the House of Commons subcommittee and a Special Senate committee
reviews of the provisions meant that they could not be adequately considered (Roach
2007: 11). Modified legislative proposals based on some of the committee’s
recommendations, however, have since been introduced in the Senate.
The application of the ATA has been fairly limited, especially when compared
with the strong arm of US Homeland Security. In the summer of 2003, in a joint RCMP
5
In October 2007, the Conservative government introduced a bill to amend the security process: it
introduces a ‘special advocate’: a lawyer, selected by the Minister, who would be able to look at a summary
of evidence against the accused, but would not be able to share this information with the accused, only to
ask for clarifications or corrections. Parliament has not yet debated these amendments.
9
and Immigration and Citizenship Canada sweep called “Project Thread,” 24 men were
arrested on charges relating to national security. Twenty-three were Pakistani, and one
was from India. None of the men were ever formally charged or convicted, but most were
later deported on the basis of immigration fraud (Aiken 2007: 188). No effort was made
to clear their names, and many have suffered subsequent harassment and unemployment
in Pakistan (Aiken 2007: 188). In another case, 17 suspects of Southeast Asian descent,
many of whom were born in Canada, were arrested in Toronto in the summer of 2006
under the anti-terrorism legislation and its powers of preventative arrest (another suspect
was also later arrested). The charges against three of the youth have since been stayed; in
September, 2007 the unusual decision was taken to stop the preliminary hearings and go
straight to trial. Both of these incidents were highly publicized, and there was a strong
presumption of guilt surrounding those detained. Roach warns that there has been
“inappropriate publicity, under powers of investigative detention that we would not
tolerate if they were used against Canadian citizens” (Roach 2006: 57). In March 2004,
Mohammed Momim Khawaja, was the first and so far only person to be charged under
the ATA (Roach 2007: 5). His case was used to challenge the motive clause of the ATA
in the courts. Many held that this clause, which defined terrorism as an act committed
“for a political, religious or ideological purpose, objective or cause,” was problematic as
it could be lead to cultural targeting (eg of Muslims). In October 2006, the Superior Court
struck down the motive clause as violating the Charter of Rights and Freedoms in that it
“was an unjustified violation of freedom of expression, religion and association and an
invitation to religious profiling of suspected terrorists” (Roach 2007: 5). Despite this
ruling, the case against Khawaja has been allowed to proceed.
As this review has revealed, the nascent security perimeter under construction has
had a significant impact upon border and immigration policies, impacts that scholars have
examined from multiple perspectives. Greater recognition now exists of the disparate
ways that the border is experienced for citizens and non-citizens, with the reminder that
even with these categories people may be treated differently: As Audrey Macklin
observes, citizens may be treated differently if they are Aboriginal or foreign born
(Macklin 2003: 1). Citizenship is also being differentiated with respect to border
crossing, whereby ‘legitimate’ travelers are granted preferential treatment, and migrant
workers have few citizenship rights. The joint border programs that make this possible
suggest that “a new kind of transnational para-citizenship” is emerging (Sparke 2006:
167; see also Gilbert, 2007). This transnationalism, however, continues to privilege some
citizens. Moreover, the increasing number of dual citizenships poses potential difficulties
when one of the citizenships is with a country deemed ‘risky,’ as the Maher Arar case
suggests (see also Stasiulis and Ross, 2006).
With respect to changes to immigration, many of the post 9/11 developments can
be understood as an exacerbation of the neoliberalization of immigration policies since
the 1990s and its history of imperialism (Abu-Laban and Gabriel, 2002; see also Sharma
2006; Stasiulis and Bakan, 2003; Dauvergne, 2003). There has, however, been a change
in that crime, criminality and national security have been yoked together so that
immigrants are continuously cast as potential terrorists, as in the 2004 National Security
Strategy (Pratt, 2005; Bhandar, 2004; Aiken, 2007). With this change, racial profiling has
also become more pronounced and has shifted slightly away from African Canadian
communities to Muslim and Arab groups in Canada, as well as communities suspected of
10
high levels of ‘illegal’ immigration (Bahdi, 2003; see also Canadian Council for
Refugees, 2001; Aiken 2007: 184). Anti-Arab and anti-Muslim sentiments and incidents
increased dramatically after 9/11 as these communities were portrayed as security risks,
and as “the weak link” in the North American ‘security perimeter’ (Bahdi 2003: 315;
Aiken, 2007). Increased surveillance legitimated by the ATA had resonated within
targeted communities, so that “by 2003, representatives of the Canadian Muslim
Lawyer’s Association and the Canadian Arab Federation were reporting a widespread
reluctance to participate in community and youth groups for fear that the authorities
would learn of their involvement and perceive it as a reason to interrogate them or worse”
(Aiken 2007: 199).
Racial profiling is not permitted or condoned in Canada anti-terrorist’s legislation,
but a series of high-profile cases regarding security certificates and preventative arrest
suggest that it is taking place (Bahdi 2003: 297). It is notable that both the Senate Report
on Anti-Terrorism Law and the Arar Commission have made recommendations against
racial profiling (Roach 2007: 15). To mitigate some of the concerns of minority groups,
the 2004 National Security Policy established a Cross-Cultural Roundtable on Security
which will consider “how to manage security interest in a diverse society’” (Aiken 2007:
191).Yet whereas racial profiling is not allowed in the compilation of crime statistics,
there is a slippage in national security policy where threats “are explicitly organized
according to nationality and ethnicity (with the exception of the category of ‘major
outlaw motorcycle gangs’)” (Pratt 2005: 207; emphasis in the original). Reem Bahdi
expresses concern that “Racial profiling will produce only illusions of security while
heightening the disempowerment and sense of vulnerability of racialized groups in
Canada” (Bahdi 2003: 317). The Senate Committee report of the ATA also signaled that
racial profiling would only erode government-community partnerships and hence would
jeopardize Canada’s anti-terrorism goals (Senate 2007: 24). This is especially the case
since the new security paradigm is based on the “precautionary principle” (Webb, 2006).
Whether in border initiatives such as the JSBSRMI or the SBAP, or legislation to do with
immigrants and non-citizens such as the IRPA and the ATA, there has been a shift
towards the presumption of guilt which has been associated with racialized and
immigrant communities (Webb, 2006; Pratt, 2005; Pue, 2003).
There are numerous concerns that this racial discrimination will intensify if
Canadian and US border and immigration policies become further harmonized given the
US’s track record. Kent Roach also insists that Canada has had a more tempered
approach than the US (Roach, 2006). Following 9/11, “the US government detained
hundreds of immigrants of Arab or Muslim descent on ‘preventive’ grounds” (Macklin
2003: 9-10). There have also been concerns that the “United States has also been engaged
in seizing and rendering individuals, often on the slimmest evidence, to extraterritorial
camps and prisons, where they have been detained indefinitely without charges and
tortured. Pentagon figures and estimates of intelligence experts puts the number of people
being held by the United States directly or at its request at nine thousand, as of May
2004” (Webb 2006: 52). Yasmeen Abu-Laban suggests that Canada’s inclusionary
politics of multiculturalism has been partly responsible for the lesser degree of racial
profiling and race targeting, while noting both the problems with multiculturalism, and
the problems experienced among numerous minoritized communities after 9/11 (AbuLaban, 2002).
11
Despite some aspects of a security perimeter, Canada and the US continue to
diverge with respect to security and immigration in several ways. The US has sought to
harden its borders, as with the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT
Act) passed in October 2001, which mandated a tripling of personnel along the USCanadian border (Meyers 2003). 6 New planes, marine units and helicopters were also
sent up to the Canada-US border. Some pundits have described this as part of the
“Mexicanization” of the Canada-US border (Andreas 2003: 9). The US PATRIOT act
also identified the first of what were to be many more controls on immigrant populations
to the US, from application, to entry, and exit (where applicable). This protocol was
superseded by the Enhanced Border Security and Visa Entry Reform Act that was signed
into legislation May, 2002 (Meyers, 2003). In August 2002, the National Security EntryExit Registration System (NSEERS) was introduced which required that 82,000 men and
boys, ages 16–45, associated with 25 largely Muslim countries in the US on temporary
visas be fingerprinted and registered (Aiken 2007: 190). Those who did not comply were
faced with the possibility of deportation (Macklin 2003: 10). 7 Thousands of non-citizens
in the US fled to Canada to claim refugee status, but most were sent back to the US while
they waited for an appointment with CIC (Pratt 2005: 209).
NSEERS was replaced, in the Spring of 2003, by the US Visitor and Immigrant
Status Indication Technology system (US VISIT) which deals with immigration, visaissues, databases, and regulations regarding inspection of aliens (Meyers 2003; Sparke,
2006). The US-VISIT program mandates that foreign nationals visiting the US be
fingerprinted (and iris-scanned where the technology is available), and their biometric
data stored in databanks so that their entry and exit to the country can be monitored
(Meyers 2003). Canadians have been exempt from much of this border legislation, eg
documentation at the border, although some Canadians have been affected (eg those on
student visas). A new requirement about biometric travel documents has come into being
with the Intelligence Reform and Terrorism Prevention Act of 2004 which requires
biometric identification (such as a passport or other secure document) be used at the
border, implemented January 31, 2008 (Webb 2006: 45).
A solid security perimeter is clearly still incomplete. A tighter security net,
however, is certainly in place, implemented through a series of joint border initiatives and
the harmonization of Canada and US immigration and anti-terrorism policies. The
Security and Prosperity Partnership (SPP) agreement between Canada, Mexico and the
US paves the way for further integration that will also draw Mexico closer into the
security orbit. Although security harmonization is not complete, it is not without impact.
As Sharryn Aiken remarks, the “series of coercive, incremental measures has led to a
serious erosion of human rights, particularly for non-citizens” (Aiken 2007: 182). The
proposals for hardening the security perimeter and their parallel initiatives for deepening
economic integration thus demand intense scrutiny as they are put forward. Cooperation
and harmonization should not be dismissed out of hand, but given the problematic
dimensions of the proposals on the table, particularly for citizenship and human rights,
6
When the announcement was made, there were 9,000 officials at the US-Mexico border (3,200km) and
only 334 border patrol agents and 498 inspectors at the Canada-US border (8,890km) (Lazer 2003: 251).
7
Canada expressed an official concern with US initiatives, and subsequently issued a travel advisory
warning.
12
neither should they be accepted as they stand. In the following section I identify areas
where more research needs to be undertaken so as to provide a more comprehensive
impact of a security perimeter, particularly on the North American population.
III: Research/Knowledge Gaps
In the section below, I’ve identified some key areas where further research could be
undertaken: with respect to institutions; policies and programs; and people. Yet the
dynamics of Canadian security are always changing, as too are those around borders and
immigration. As new domestic, bilateral, trilateral and international initiatives get under
way—and as these are changed or revised due to public pressure or legal review—the
border and immigration landscapes will continue to shift. Hence, there will always be
gaps in the research needing to be filled, and questions other than those set out below
which will need to be addressed.
Institutions
• In December, 2003 the Canada Border Services Agency (CBSA) was formed. The
CBSA reports directly to Minister of Public Safety, and assumes core responsibility
for key border issues around trade and immigration issues. Among its key tasks are
the administration of border legislation, the supervision of border mobility, and the
detention or removal of security threats. Very little analysis has been undertaken
regarding the mandate of the CBSA and its functioning. Participants at the Metropolis
workshop confirmed that, as a young organization, more information was needed to
better understand its workings. As participants at the Metropolis seminar indicated, as
As Aiken (2007) observes, there are crucial concerns regarding security and
protection responsibilities being under the purview of one authority. What impact
does CBSA have on citizens and non-citizens? Particular attention needs to be
addressed to the four detention centres that it operates, about which very little is
known.
• In 2003, Public Safety Canada (PSC) was formed, with a current budget of $6 billion,
and over 52,000 employees. It reports to the newly created Minister of Public Safety.
PSC draws together the associated agencies of Canada Border Services Agency; the
RCMP; the Canadian Security Intelligence Service; Correctional Service Canada; and
the National Parole Board. PSC also deals with three review bodies: the Commission
for Public Complaints against the RCMP; the Office of the Correctional Investigator;
and the RCMP External Review Committee. PSC address security matters arising
from a wide range of areas: natural disasters, terrorism and crime. What are the
implications of drawing together such a wide-range of threats? How does the PSC
coordinate across agencies? How does the PSC work with its provincial counterparts?
• A Cross-Cultural Roundtable on National Security was established in the 2004
National Security Policy, Securing an Open Society: Canada’s National Security
Policy. Its mandate is to engage in dialogue around the impact of national security
matters on Canada’s “diverse and pluralistic society.” In February, 2005 its members
were appointed Securing Open Borders. There has been little attention addressed as to
13
•
the roundtable’s achievements, or the ways that it engages with the community
(French, 2007). So far there has been no assessment of the roundtable or its
achievements.
There has been very little research on the impact the new security paradigm has had
on Canadian policies around terrorist financing. With the ATA, and in keeping with
UN resolutions, a key dimension of war on terror has been to target the financing of
terrorist activities. With the ATA, amendments were made to The Proceeds of Crime
(Money Laundering) and Terrorist Financing Act. Since 9/11 more resources have
gone into The Financial Transactions Reports Analysis Centre (FINTRAC) which has
reported a large increase in its activity. What kind of terrorist financing is being
investigated? Who and what transactions are being targeted? How do the Canadian
agencies work with their international counterparts?
Policies and programs:
• What is the role and function of the Public Safety Act? How does it impact on other
legislation? What are the broader social and political implications? A Public Safety
Act, Bill C-42, was first introduced shortly after 9/11 alongside the ATA, but unlike
the ATA the bill did not pass through Parliament. It was reintroduced as Bill C-55 in
April 2002, only to be again withdrawn. The bill was reintroduced for a third time in
October, 2002 as Bill C-17, which received Royal Assent on May 6, 2004, and was
enacted in 2004.
• There have been several studies that address cross border pre-clearance programs (eg
Sparke, 2004, 2006; Gilbert, 2007). But there are no in-depth studies of either the
NEXUS or FAST programs. Who is using these programs? Why? Who has been
denied? Are the programs effective? Do these programs encourage a form of
transnational citizenship?
• In February, 2007 the Supreme Court ruled on the Charkaoui case and found security
certificates to be in violation of 7, 9 and 10 of the Canadian Charter of Rights and
Freedoms. Will the amended security certificate process, as proposed by the
Conservative government in October, 2007 pass? And if so, what are the
implications? What comparisons can be drawn with the UK process upon which the
amendments have been made? What if the amendment does not pass, what then?
• What shape will the US-Canada Safe Third Country Agreement take? In a judgement
of November, 2007 the Federal Court ruled against the agreement on the basis that
the US does not meet international refugee protection requirements, and does not
respect international conventions against torture. Justice Michael Phelan also argued
that the Safe Third Country contravened the Charter, and that it not been subject to its
mandatory review. The agreement was ruled inoperable as of February 1, 2008. The
Federal Court of Appeal, however, has granted the Government a stay of the decision
while it appeals the court’s decision. Are there examples of a safe third country
agreement elsewhere? Who is affected and how?
• What impact has US legislation and joint US-Canada legislation had on Canadian
policies? As Daniel Drache observes, there is no Canadian institution to oversee the
ways that US statutes impinge upon Canadian domestic policies such as the Charter
of Rights and Freedoms, or upon immigration policy, nor any analysis of the impact
14
•
of US security demands on NAFTA (Drache 2004: 7). Research needs to be
undertaken on the extra-territorial impact of anti-terrorist legislation. One area that
needs to be examined is the impact of impact of anti-terrorist legislation on Canadian
privacy laws. There are ongoing concerns in the US that Canadian privacy laws are
limiting the information sharing taking place, whereas the US changed its privacy
laws to facilitate this (Meyers 2003: 15).
The impact on provinces and municipalities on national and trans-national legislation
and international agreements needs also to be examined. Much of the analysis has
been focused on the national scale, with limited attention to local and regional effects
and consequences.
Population:
• Very little attention has been addressed as to how anti-terrorist legislation impinges
upon the Aboriginal population. Particular attention may be required as to the impact
on reserves that are located near the Canada-US border. A Haudenosaunee Task
Force on Border Crossing has been established, which is dealing with US Homeland
Security and Canada Customs and Immigration to address issues such as security
identification cards, but there are allegations that this task force was one created in
collusion with the governments, and hence does not represent the community.
• As detailed above, numerous studies have detailed the implications of policy and
legislation on immigration and preventative arrest. Detailed information from
immigrants, however, is lacking. What have been the experiences at detention
facilities such as the Celebrity Inn in Mississauga and the new super jail in the
Kawartha Lakes? As Pratt observes, this information may be difficult to acquire—
even figures on the demographics of detainees are not available (Pratt 2005: 45). But
more efforts should be made to acquire this information, and to investigate the
processes and people involved in detaining non-citizens. What are the different
experiences of the detained with respect to race and gender? An analysis of the
changing demographics of immigration would lead to greater insight into how
policies such as the safe-third country agreement are affecting immigration patterns.
This is especially significant as it may prove impossible to gather information from
those whose refugee appeals have been thwarted by these policies.
• Ethnographic studies of the Canada-US border would help broaden our understanding
of the impact of new policies and legislation on the mobility of people and trade.
Interviews with border-crossers, border agents, and border security in both the US
and Canada could reveal more nuanced information about the impact of the new
security paradigm on the border.
• Civil society groups have been working strenuously to oppose increasing border
security and the militarization of the border. Little detailed knowledge is available,
however, on the work of national and international groups on these issues, and the
sites of their struggles. Among the organizations which have played a significant role
in Canada include: No One is Illegal; Project Threadbare; Canadian Council on
Refuges; the Canadian Bar Association; the International Civil Liberties Monitoring
Group; the Canadian Arab Federation; the Council of Canadians; and Homes not
15
Bombs. Attention needs to be addressed to the activism underway, and especially on
the alternatives that they propose.
IV: Proposing a Research Framework
The section above identifies several issues that warrant further research. In this section I
propose four broad themes that can be used as a framework for addressing these and
other issues relating to security, borders and immigration in Canada: 1) citizenship; 2)
security; 3) borders; and 4) comparative studies. These themes, however, are interrelated,
and integrative research that draws across them is especially necessary.
1) Citizenship 8
In recent years, a considerable amount of scholarly work has been devoted to the study of
citizenship, particularly as it is being reconfigured because of processes of globalization
and neoliberalization. Challenges to the role and sovereignty of the nation-state, which
has traditionally been the guarantor of citizenship status, pose new problems and perhaps
opportunities for citizenship. The new security paradigm also impinges upon citizenship,
and on the political, legal and social rights and responsibilities that have come to be
associated with citizenship status. Further research on this security-citizenship nexus
needs to be undertaken, and the ways that citizenship is being reconstituted.
Although many have dismissed the likelihood of a future North American
citizenship (Welsh, 2004), questions have been raised as to whether joint bilateral
initiatives—such as border pre-clearance programs—signal the rise of a “paratransnational citizenship” (Sparke, 2006; Gilbert, 2007). Whether or not a formal
transnational citizenship is emerging, citizenship is at least in part being reconfigured
away from its national mooring. What are the implications of this shift? What kind of
citizenship is taking shape? Who stands to benefit? Who stands to lose? How does a
transnational citizenship exist alongside national citizenship? In what kinds of ways is
citizenship experienced at the local scale? This research could draw upon and expand the
work of Aihwa Ong on “flexible citizenship,” that is on the transnational privileges
associated with mobile business immigrants (Ong, 2006, 1999; see also Waters, 2003 on
Canada). At a more local scale, the work Engin Isin and others have undertaken on urban
citizenship suggests ways of rethinking citizenship and citizen claims to space that could
introduce an analysis of activist engagement (Isin, 2000).
The emergent security perimeter has significant implications for labour and rights,
but very little research has been undertaken thus far to explicitly examine this
interrelationship. The SPP in particular will impinge on worker rights in that it promotes
temporary worker programs as a mechanism to take pressure off the border and to help
reduce the number of undocumented workers in North America, particularly those arising
from Mexico (Gilbert, 2007). Further research into the impact of the security perimeter
8
One participant at the seminar noted that a discussion of citizenship might not be necessary given that it is
the mandate of another Metropolis working group. Given the importance of citizenship to the issues under
examination here, I think it is crucial that it be retained. This might, however, provide opportunities for
more collaborative work across Metropolis communities.
16
on labour mobility would draw upon the excellent work already undertaken on temporary
work programs which have emphasized the discriminatory aspects of these programs,
particularly in terms of race and gender (eg Basok, 2002; Stasiulis and Bakan, 2003;
Sharma, 2006). How differentiations are made on the basis of designations of skilled and
non-skilled labour need also to be addressed (Gabriel, 2006). Security legislation is also
being experienced directly in some labour sectors. Deborah Cowen has documented the
impact of port securitization on dock workers and the ways that new security legislation
has been manipulated to erode worker rights (Cowen, 2007). Attention needs to be
directed to other sectors where security legislation has impacted upon worker insecurity.
The implications for the reconstitution of citizenship on non-citizens—such as
migrant workers, undocumented workers, permanent residents, or refugee claimants—
also requires special attention. Further research is required which examines Canadian
sites of detention; practices of detention; and the experiences of migrants who have been
detained. Joseph Nevins (2002) has provided a rich exploration of the rise of the ‘illegal
alien’ in the US who has been construed as a social and political threat. A similarlyfocused work on Canada would provide rich insight into the processes through which
non-citizens have become criminalized. As differentiations between citizens and noncitizens are becoming more polarized, the stakes are getting higher in that it is expected
that human rights will only be accorded to citizens. Yet this dichotomy is becoming
somewhat troubled with the rise of dual citizenship, as the Arar case described above
illustrates; the implications of dual citizenship on legal, political and social rights and
belonging warrants further analysis (Stasiulis and Ross, 2006). The anxieties created in
and through citizenship also warrant further analysis as processes of securitization
produce more anxious, “neurotic citizens” (Isin, 2004; see also Bigo, 2002; Cowen and
Gilbert 2008). It is precisely this sense of insecurity engendered by securitization that
surfaced in a series of interviews with Arab-American and British-Arab activists
undertaken by Lynn Staeheli and Caroline Nagel (2008). Comparable and comprehensive
ethnographic research in Canada needs to be undertaken on the impact of securitization
of minoritized communities.
2) Security
With the war on terror, security concerns have become ubiquitous. At the same
time, what is meant by security is shifting, as are thoughts as to how to ensure security.
As Pratt indicates, the Department of National Defence in 2002 clearly pointed to the
changing definitions: “the concept of security has expanded from denoting the safety of
the state and protection against military danger to conveying the notion of freedom from
fear and focusing on the security of people against a whole range of risks (‘human
security’)” (Pratt 2005: 167). There are also concerns that with a security perimeter that
Canada will adopt a concept of security more in keeping with the US, which prioritizes
national security (or the security of the state) over human security (or security of the
people) (Staples, 2007). Already there is a general tendency towards turning migration
issues into a security problem, along a whole security continuum that draws together a
wide and disparate range of issues such as terrorism, migration, drugs, organized crime,
etc. (Bigo, 2002). Understanding changes to ways of thinking about security are
especially important with respect to the ways that security—eg at the border—is
17
becoming increasingly militarized (Bigo, 2001; Whitaker, 2004). Research also needs to
address the implications of security privatization is having on human rights, eg with
respect to detention centers, information sharing, accountability, etc (see Pratt 2005: 51).
The implications for human rights as especially important to discern, and as
Wesley Wark remarks, there has not yet been a sustained examination of the ways that
national security impinges upon human rights (Wark, 2006). Michelle Lowry and Peter
Nyers (2003) have helped expose some of the problems faced by non-status Algerians in
Canada caught in this security net, and their activism along these lines (see also Wright,
2003; Nyers, 2006; Chacón and Davis, 2006); further work needs to be done, especially
that which engages with and responds to the concerns of those most directly affected by
new border and immigration legislation. The claim that some authors have made, such as
Reg Whitaker, that human rights are eroded with the erosion of national security needs to
be interrogated, so that it is not presumed that Canada necessarily successful upholds
human rights (Wark 2006: 7). New surveillance powers authorized by the ATA are one
part of a larger trend towards what some have called the “surveillance society” (Lyon,
2003). The appeal of biometrics as a mechanism to secure identity is just one problematic
aspect of this surveillance society which needs to be examined (Muller, 2004; Browne,
2004). Attention needs to be directed to the ways that information-sharing is taking place
across federal and provincial departments, across national jurisdictions, and by private
companies, a point made by the Privacy Commissioner (Wark 2007: 32).
Finally, little analysis has been undertaken regarding the new securitization of
money and finance. With the ATA new resources were directed towards money
laundering and terrorist financing. The Financial Transactions Reports Analysis Centre
(FINTRAC) received $63 million investment to help it in its information gathering.
Financial institutions are required to report suspicious transactions; those institutions are
also provided with a list of named terrorists, who assets they are instructed to freeze
(Aiken 2007: 197–198). Foreign-based charities have been particularly targeted when
they are deemed to support ‘terrorist’ endeavors. As Bahdi reveals, racial profiling takes
place in that financial institutions have been advised to treat with suspicion those whose
names resemble those on the list which has meant that Arabs and Muslims are especially
suspect (Bahdi 2003: 302). People are thus rendered suspicious through name association
and must be reported to CSIS and the RCMP; the onus is placed on them to establish
their innocence. How many other cases are there similar to that of Liban Hussein?
Hussein was wrongfully listed as a terrorist on Canada’s list and the United Nations Act,
and although he was cleared of wrongdoing he lost his business, home and reputation
(Pue 2003: 288; Bahdi 2003: 310). Mona Atia’s research on the disproportionate and
discriminatory ways that US anti-terrorism financing has targeted Islamic charities,
hawala and small-scale monetary networks provides a model for Canadian research
(Atia, 2007).
3) Borders
Much of the rhetoric around borders before 9/11 echoed with declaration of the end of the
nation-state: it was presumed that in a world increasingly saturated by globalization, that
borders would disappear. The finality of these pronouncements were likely never
accurate, but certainly in the post-9/11 borders have not been eroded, and indeed have
18
been hardened in many respects. A process that Peter Andreas describes as “rebordering”
is underway whereby a concomitant hardening and softening of the border is taking place
(Andreas, 2003). The border can no longer be approached with a “Maginot Line of
defense mentality” (Hristoulas 2003: 33; see also Salter, 2004; Bigo, 2002). William
Walters also describes a process of “delocalization” whereby processes and practices
usually associated with the site of the border are being disaggregated extra-territorially
and interiorly (Walters, 2004). Border processes are being offshored by visa-processing
initiatives and through risk assessment, with the effect that immigrants and refugee
claimants are bring intercepted before they reach the physical border (Aiken 2007: 190).
Changes to the immigration act have meant that non-citizens are subject to examination
at any time, not just at border landing, so that the border is extended inwards. In other
ways, the border is being reconfigured by the increasing privatization of security and
mobility, eg as airline carriers assume liability for ensuring their passengers have correct
documentation. Finally, borders, which have long been sites where sovereignty is
exercised through population control, have become sites of criminalization—so those
populations which are excluded are policed and made criminals.
The human rights impact of “rebordering,” “delocalization,” and other border
transformations needs to be explicitly examined. This will also help to shed light on the
pervasive disconnect that exists between geoeconomic and geopolitical border strategies
(Coleman, 2005). Addressing economic and security imperatives is especially important
because of the ways that they have been yoked together by Canadian business interests to
put pressure on refashioning border and immigration policy. Proposals for deeper
economic integration continue apace, from entrenching free trade corridors, building
super highways and energy corridors. As these economic proposals gain ground, the
importance of new programs and policies to human rights and citizenship need to be
examined.
4) Comparative Studies
Some comparative research has been undertaken on security, borders and immigration at
other sites, but more could be done. As Wesley Wark (2006) argues, much could be
gleaned from a comparison with how other countries have dealt with anti-terrorism
legislation and human rights (but see Jenkins, 2003). Three case studies offer particularly
fruitful points of comparison: the US; Europe; and Australia.
•
US: Canada’s anti-terrorism legislation is often portrayed as mirroring that of the US.
A more in-depth comparison of the legislation would be helpful. This could help shed
further light on the impact of US legislation on Canada (see Sokolsky 2004/05). Some
further comparisons of US policies and practices at its Mexican and Canadian borders
could also be undertaken (see Andreas, 2003; Gabriel et al 2003; Hristoulas 2003;
Serrano, 2003). There has been a significant amount of research on the US-Mexico
border, from the 1990s to the present (eg Nevins; 2002; Coleman, 2005, 2007). As
Coleman documents, changes to US-Mexico border policies resonate with many of
the same concerns at the Canada-US border, although there are also very different
dynamics at work. At both borders there has been a criminalization of immigration,
although at the southern border concerns are predominantly about the number of
19
Mexican undocumented workers in the US. Yet the borders are also treated
differently: for the most part, the Canada-US border remains relatively open when
compared to the fences that have been erected at flashpoints along the US-Mexico
border.
•
Europe: The Schengen Convention of June 1990, which came into effect in 1995,
established a common migration perimeter for its signatories (Walters, 2002).
Although it was conceived outside of the European Union (EU), it later became
subsumed within it so that it now includes almost all its members (as well as some
countries which are not formally in the EU). Pratt identifies a number of
commonalities between the Schengen area and North American security policies:
there is a common external perimeter; internal border checks have been eliminated
and there are standardized border procedures; common visa and asylum policies are in
place; the security information system is shared; and there are close links with law
enforcement and judicial authorities (Pratt 2005: 5). A little contemporary research
has addressed the post-9/11 security context in both regions (Salter, 2004). More work
could be undertaken to provide a more detailed examination of these two areas that
would build upon earlier comparative research (eg Andreas and Snyder, 2000, Abell
1997). This research could also examine the European anti-terrorist legislation put in
place in the post-9/11 era.
• Australia: Australia has received international attention for its strong-arm security
measures and severe treatment of unlawful immigrants, particularly in the post-9/11
era (eg Hocking, 2003). Australia has set up detention facilities in remote parts of the
country, as well as extra-territorially on the Pacific Islands of Nauru, Papua New
Guinea, and Christmas Island. In her extended discussion of Canadian detention and
deportation policies, Pratt does undertake some brief comparisons with Australia
which she writes has been known to have “an exceptionally punitive approach to
immigration, refugee, and border-related issues” (Pratt 2005: 7). An extended
comparison could provide insight onto how and why state security strategies differ,
especially given the similar colonial histories of the two countries, their tradition as
significant receiving countries for immigrants, and their contemporary policies of
multiculturalism.
20
Works Cited
Abell, Nazare Albuquerque (1997) “Safe country provisions in Canada and in the
European Union: a critical assessment” The International Migration Review 31
(1997): 569–590.
Abu-Laban, Yasmeen (2002) “Liberalism, multiculturalism and the problem of
essentialism” Citizenship Studies 6(4): 459–482.
Abu-Laban, Yasmeen and Christina Gabriel (2002) Selling Diversity: Immigration,
Multiculturalism, Employment Equity, and Globalization; Peterborough:
Broadview Press.
Aiken, Sharryn J. (2007) “Risking rights: an assessment of Canadian border security
politics” in Ricardo Grinspun and Yasmine Shamsie, ed. Whose Canada?:
Continental Integration, Fortress North America and the Corporate Agenda;
Montreal and Kingston: McGill-Queen’s University Press: 180–208.
Andreas, Peter (2003) “A tale of two borders: the US-Canada and US-Mexico lines after
9-11” in Andreas, Peter and Thomas J. Biersteker, ed. The Rebordering North
America: Integration and Exclusion in a New Security Context; New York and
London: Routledge: 1–23.
Andreas, Peter and Thomas J. Biersteker, ed. (2003) The Rebordering North America:
Integration and Exclusion in a New Security Context; New York and London:
Routledge.
Andreas, Peter and Timothy Snyder, ed. (2000) The Wall around the West: State Borders
and Immigration Controls in North America and Europe; Lanham: Rowman and
Littlefield.
Atia, Mona (2007) “In whose interest? Financial surveillance and the circuits of
exception in the war on terror” Environment and Planning D: Society and Space
25: 447–475.
Bahdi, Reem (2003) “No exit: racial profiling and Canada’s war against terrorism”
Osgoode Hall Law Journal 41 (2/3): 293–317.
Barlow, Maude (2005) Too Close for Comfort: Canada’s Future within Fortress North
America; Toronto: McClelland and Stewart.
Basok, Tanya (2002) Tortillas and Tomatoes: Transmigrant Mexican Harvesters in
Canada; Montreal: McGill-Queen’s University Press.
Bell, Stewart (2002) “Blood money: international terrorist fundraising in Canada” in
Norman Hillmer and Maureen Appel Molot, ed. Canada Among Nations 2002: A
Fading Power; Toronto: Oxford University Press: 172–190.
Bhandar, Davina (2008) “Resistance, detainment, asylum: the onto-political limits of
border crossing in North America” in Deborah Cowen and Emily Gilbert, ed.
War, Citizenship, Territory; Toronto: Routledge: 281–302.
Bhandar, Davina (2004) “Renormalizing citizenship and life in fortress North America”
Citizenship Studies 8(3): 261–278.
Bigo, Didier (2002) “Security and immigration: toward a critique of the governmentality
of unease” Alternatives 27: 63–92.
Bigo, Didier (2001) “The Möbius ribbon of internal and external security(ies)” in M
Albert, D Jacobson and Y Lapid, ed. Identities, Borders, Orders; Minneapolis:
Unniversity of Minnesota Press: 91–116.
21
Browne, Simone (2005) “Getting carded: border control and the politics of Canada’s
permanent resident card” Citizenship Studies 9(4): 423–438.
Campbell, Bruce and Ed Finn, ed. (2006) Living with Uncle: Canada-US Relations in an
Age of Empire; Toronto: James Lorimer and Company.
Canadian Council for Refugees (2001) Refugees and Security; Montreal: Canadian
Council for Refugees.
Canadian Council for Refugees (2007) Safe Third Country: Brief to the Standing
Committee on Citizenship and Immigration; Toronto: 1–4.
Chacón, Justin Akers and Mike Davis (2006) No One is Illegal: Fighting Racism and
State Violence on the US-Mexico Border; Chicago: Haymarket Books.
Clarkson, Stephen (2003) “The view from the attic: toward a gated continental
community?” in Andreas, Peter and Thomas J. Biersteker, ed. (2003) The
Rebordering North America: Integration and Exclusion in a New Security
Context; New York and London: Routledge: 68–89.
Clarkson, Stephen and Maria Banda (2007) “Paradigm shift or paradigm twist? The
impact of the Bush doctrine on Canada’s international position” in Ricardo
Grinspun and Yasmine Shamsie, ed. Whose Canada?: Continental Integration,
Fortress North America and the Corporate Agenda; Montreal and Kingston:
McGill-Queen’s University Press: 107–128.
Coleman, Mathew (2007) “Immigration geopolitics beyond the Mexico-US border”
Antipode 39 (10): 54–76.
Coleman, Mathew (2005) “US statecraft and the US-Mexico border as security/economy
nexus” Political Geography 24: 185–209.
Cowen, Deborah (2007) “Struggling with ‘security’: national security and labour in the
ports” Just Labour 10: 30–44.
Cowen, Deborah and Emily Gilbert (2008) “Citizenship in the ‘homeland’: families at
war” in Deborah Cowen and Emily Gilbert, ed. War, Citizenship, Territory; New
York: Routledge: 261–280.
D’ Aquino, Thomas (2003) “Security and prosperity: The dynamics of a new Canada–
United States partnership in North America.” Presentation to the annual general
meeting of the Canadian Council of Chief Executives.
Daniels, Ronald J, Patrick Macklem, and Kent Roach, ed. (2001) Security of Freedom:
Essays on Canada’s Anti-Terrorism Bill; Toronto: University of Toronto Press.
Daubney, David, Wade Deisman, Daniel Jutras, Errol P Mendes, and Patrick A Molinari
ed. (2002) Terrorism, Law and Democracy: How is Canada Changing Following
September 11; Montréal: Editions Thémis
Dauvergne, Catherine (2003) “Evaluating Canada’s new immigration and refugee
protection act in its global context” Alberta Law Review 41: 725–44.
Dobson, Wendy (2002) Shaping the Future of the North American Economic Space; C.
D. Howe Institute Commentary 162. Toronto: C. D. Howe Institute.
Drache, Daniel (2004) Borders Matter: Homeland Security and the Search for North
America; Halifax: Fernwood Publishing.
French, Martin (2007) “In the shadow of Canada’s camps” Social Legal Studies 16(1):
49–69.
Gabriel, Christina (2006) “Charting Canadian immigration policy in the new millennium”
in Andrew F Cooper and Dane Rowlands, ed. Canada among Nations 2006:
22
Minorities and Priorities; Montreal and Kingston: McGill-Queen’s University
Press: 187–208.
Gabriel, Christina, Jimena Jimenez and Laura Macdonald (2003) “Toward North
American “Smart Borders”: Convergence or Divergence in Border Control
Policies?” Paper presented at the International Studies Association, Portland,
2003.
Gabriel, Christina and Laura Macdonald (2004) “Of borders and business: Canadian
corporate proposals for North American ‘deep integration” Studies in Political
Economy 74: 79–100.
Gilbert, Emily (2005) “The inevitability of integration? Neoliberal discourse and the
proposals for a new North American economic space after September 11” Annals
of the Association of American Geographers 95(1): 202–222.
Gilbert, Emily (2007) “Leaky borders and solid citizens: governing security, prosperity
and quality of life in a North American partnership” Antipode 39(10): 77–98.
Hart, Michael and Bill Dymond (2001) Common Borders, Shared Destinies: Canada, the
United States and Deepening Integration; Ottawa: Centre for Trade Policy and
Law Policy Debates.
Hocking, Jenny (2003) “Counter-terrorism and the criminalization of politics: Australia’s
new security powers of detention, proscription and control” Australian Journal of
Politics and History 49(3): 355–371.
Hristoulas, Athanasios (2003) “Trading places: Canada, Mexico, and North American
security” in Andreas, Peter and Thomas J. Biersteker, ed. (2003) The Rebordering
North America: Integration and Exclusion in a New Security Context; New York
and London: Routledge: 24–45.
Isin, Engin (2004) “The neurotic citizen” Citizenship Studies 8(3): 217–235.
Isin, Engin, ed. (2000) Democracy, Citizenship and the Global City; New York:
Routledge.
Jenkins, David (2003) “In support of Canada’s Anti-Terrorism Act: A comparison of
Canadian, British and American anti-terrorism law” Saskatchewan Law Review
66(2): 419–54.
Laxer, James (2003) The Border: Canada, the US and Dispatches from the 49th Parallel;
Doubleday Canada.
Lowry, Michelle and Peter Nyers (2003) “‘No one is illegal’: the first for refugee and
migrant rights in Canada” Refuge 01 May.
Lyon, David (2003) Surveillance after September 11; London: Polity.
Macklin, Audrey (2003) The Value(S) of the Canada-US Safe Third Country Agreement.
University of Toronto. Toronto: The Caledon Institute of Social Policy: 1–23.
Meyers, Deborah Waller (2003) “Does ‘smarter’ lead to safer? An assessment of the US
border accords with Canada and Mexico” International Migration 41(4): 5–44.
Muller, Benjamin J (2004) “(Dis)qualified bodies: securitization, citizenship and ‘identity
management’” Citizenship Studies 8(3): 279–294.
Mutimer, David (2007) “Sovereign contradictions: Maher Arar and the indefinite future”
in Elizabeth Dauphinee and Cristina Masters, ed. The Logics of Biopower and the
War on Terror; New York: Palgrave Macmillan: 159–179.
Nevins, Joseph (2002) Operation Gatekeeper: The Rise of the ‘Illegal Alien’ and the
Making of the US-Mexico Boundary; New York: Routledge.
23
Nyers, Peter (2006) Rethinking Refugees: Beyond States of Emergency; New York:
Routledge.
Ong, Aihwa (2006) Neoliberalism as Exception: Mutations in Citizenship and
Sovereignty; Durham: Duke University Press.
Ong, Aihwa (1999) Flexible Citzenship: the Cultural Logics of Transnationalism;
Durham: Duke University Press.
Pratt, Anna (2005) Securing Borders: Detention and Deportation in Canada; Vancouver:
UBC Press.
Pue, Wesley (2003) “The war on terror: constitutional governance in a state of permanent
warfare?” Osgoode Hall Law Journal 41 (2/3): 267–292.
Razack, Sherene (2007) “‘Your client has a profile:’ race and national security in Canada
after 9/11” Studies in Law, Politics and Society.
Rekai, Peter (2002) US and Canadian Immigration Policies: Marching Together to
Different Tunes; Toronto: CD Howe Institute.
Roach, Kent (2007) “Better late than never? The Canadian parliamentary review of the
Anti-terrorism Act” IRPP Choices 13(5): 1–40.
Roach, Kent (2006) “Security and civil liberties after September 11: the Canadian
response” in Bruce Campbell and Ed Finn, ed. Living with Uncle: Canada-US
Relations in an Age of Empire; Toronto: James Lorimer and Company: 54–59.
Roach, Kent (2003) September 11: Consequences for Canada; Montreal and Kingston:
Mc-Gill–Queen’s University Press.
Rygiel, Kim (2006) “Protecting and proving identity: the biopolitics of waging war
through citizenship in the post-9/11 era” in Krista Hunt and Kim Rygiel, ed.
(En)Gendering the War on Terror: War Stories and Camouflaged Politics;
Aldershot: Ashgate: 145–168.
Ryman, Sarah Anne (2007) The U.S./Canada Safe Third Country Agreement: A
Geographical Evaluation; BA Thesis submitted to the Department of Geography,
University of Syracuse. Paper available from the author c/o Department of
Geography, University of Toronto, 100 St. George St., Toronto, Ontario, M5S
3G3.
Salter, Mark B. (2004) “Passports, mobility and security: how smart can the border be?”
International Studies Perspectives 5(1): 71–91.
Senate of Canada (2007) Fundamental Justice in Extraordinary Times: Main Report of
the Special Senate Committee on the Anti-Terrorism Act; Ottawa: 1–147.
Serrano, Mónica (2003) “Bordering on the impossible: US-Mexico security relations as
9-11” in Andreas, Peter and Thomas J. Biersteker, ed. (2003) The Rebordering
North America: Integration and Exclusion in a New Security Context; New York
and London: Routledge: 46–67.
Sharma, Nandita (2006) Home Economics: Nationalism and the Making of ‘Migrant
Workers’ in Canada; Toronto: University of Toronto Press.
Sokolsky, Joel (2004–2005) “Northern Exposure? American Homeland Security and
Canada” International Journal 60(1): 35–52.
Sparke, Matthew (2006) “A neoliberal nexus: economy, security and biopolitics of
citizenship at the border” Political Geography 25: 151–181.
24
Sparke, Matthew (2004) “Passports into credit cards: on the borders and spaces of
neoliberal citizenship” in J Migal, ed. Boundaries and Belonging; Cambridge:
Cambridge University Press: 251–283.
Staeheli, Lynn and Caroline Nagel (2008) “Rethinking security: perspectives from ArabAmerican and British Arab activists” Antipode. Forthcoming.
Staples, Steven (2007) “Fortress North America: The Drive towards Military and
Security Integration and its Impact on Canadian Democratic Sovereignty” in
Ricardo Grinspun and Yasmine Shamsie, ed. Whose Canada?: Continental
Integration, Fortress North America and the Corporate Agenda; Montreal and
Kingston: McGill-Queen’s University Press: 154–175.
Stasiulis, Daiva and Darryl Ross (2006) “Security, flexible sovereignty, and the perils of
multiple citizenship” Citizenship Studies 10(3): 329–348.
Stasiulis, Daiva K and Abigail B Bakan (2003) Negotiating Citizenship: Migrant Women
in Canada and the Global System; Toronto: University of Toronto Press.
Walters, William (2004) “Border/control” European Journal of Social Theory 9(2): 187–
203.
Walters, William (2002) “Mapping Schengenland: denaturalizing the border”
Environment and Planning D: Society and Space 20: 561–580.
Wark, Wesley (2006) National Security and Human Rights Concerns in Canada: A
Survey of Eight Critical Issues in the Post-9/11 Environment; Report prepared for
the Canadian Human Rights Commission.
Waters, Johanna (2003) “Flexible citizens? Transnationalism and citizenship among
economic immigrants in Vancouver” Canadian Geographer 47(3): 219–234.
Webb, Maureen (2006) “The security agenda: driving deep integration” in Bruce
Campbell and Ed Finn, ed. Living with Uncle: Canada-US Relations in an Age of
Empire; Toronto: James Lorimer and Company: 37–53.
Welsh, Jennifer (2004) At Home in the World: Canada’s Global Vision for the 21st
Century; Toronto: HarperCollins.
Whitaker, Reg (2004) “The security state” in James Bickerton and Alain-G Gagnon, ed.
Canadian Politics, fourth edition; Peterbrorough: Broadview Press: 223–236.
Wright, Cynthia (2003) “Moments of emergence: organizing by and with undocumented
and non-citizen people in Canada after September 11” Refuge 21(3): 5–15.
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