Between Protection and Punishment: The Irregular Arrival Regime in Canadian Refugee Law

Abstract

The Stanstead border crossing dividing Québec from Vermont is not a typical border crossing point- One would expect to find a wall, a fence, or a checkpoint station to mark the international boundary line, instead, a simple white line is painted on the concrete bearing the inscription ‘Canada’ and ‘United States’ on either side- A row of flowerpots sits atop thai while line, dividing one country from another. East of the white line is the Stanstead library, constructed deliberately astride the border, with the front door located in the United States and the collection in Canada, One floor above, the Haskell Opera House stages productions that traverse the border: the cast performs on Canadian soil while the audience sits in the United States. Described by the New York Times as a ‘symbol of cross-border friendship’ (Austen 2007), the Stanstead border crossing presents the Canadian border as many imagine it: open, welcoming, and lined with flowers. This ideal is not simply imagined, but also finds expression in law. For example, in the landmark 1985 decision Singh v. Canada, the Supreme Court of Canada ruled that every person who is physically present at or within Canada’s borders, including refugee claimants, is legally entitled to basic constitutional protection under section 7 of the Canadian Charter of Rights and Freedoms. With this decision, the Court effectively enacted the Canadian border as a site of limited, but nonetheless meaningful, rights protection for refugee claimants,¹