Immigration Policies, Policing Policies.

Human Rights Violations against Non-Legal Status Canadians

The first part of this series highlighted the complexity of having 4.9 million individuals that are expected to lose their legal status to stay in Canada, how the women and children among those are most susceptible to becoming victims of enslavement crimes like human trafficking, how if they turned to policing stakeholders for help, police stakeholders are currently obligated to turn individuals who are in Canada without legal status over to the CBSA for deportation.  Whether a person is a victim or a criminal, if they are without legal status then there is no difference as to how police are to treat them, and that’s a problem.

I spoke with a human rights lawyer based in Ottawa, and explored how legal language may have never been intended for everyone’s benefit because of what was suggested about the Charter of Rights and Freedom’s and legal standards.

Canada’s Federal Court Disagreeing with the UN on Human Rights

A chat with Professor Alex Neve, an international human rights lawyer based in Ottawa, currently working in academia, and with a background in immigration, featured a few takeaways including how individuals with temporary visa permits are particularly vulnerable to human rights abuses.  Whether it is obtaining access to life-saving care or interacting with police as the victims who are reaching out for help, some aspects related to an individual’s immigration status undoubtably discriminate against them.  Individuals without legal status to stay in Canada are particularly susceptible to exploitation from employers, partners, and criminals, because they will never come forward regarding the abuses as their immigration status comes first during any interaction with police.  Currently, a lack of legal status to stay in Canada may take precedent over being a victim of crime.

Victims of crimes of enslavement, like human trafficking, who are in Canada without legal status deserve to receive protection from criminals and support from police when they turn to police for help.  It should be a no-brainer—Canada’s Charter of Rights and Freedoms guarantees it.  Yet, it is being disregarded by both federal and provincial institutions.  When those individuals who are without legal status to stay in Canada are turned over to the CBSA, even victims of crime who turn to police for help, it is virtually certain that they will be summarily deported from Canada.  The current approach to deportation involves requesting that the courts rule that the individual be immediately deported.

But institutional stakeholders who disregard that someone is a victim of a crime and that they are reaching out to the police and prioritize deporting them might not “technically” meet the legal standard necessary for it to be a Charter violation.  The reason is that there are some checks and balances in place.  We have the Immigration and Refugee Board of Canada and a few avenues for individuals without legal status to stay in Canada where they could apply for “exceptional circumstances” to not get deported.  Unfortunately, it does not matter how effective those check and balances may be, the Courts would be unlikely to rule that those policing policies meet the “high standard” necessary for there to be a Charter violation.

But if policing policies that prioritize the deportation of victims of enslavement crimes, like human trafficking, after turning to police for help do not constitute a violation of the Charter because they do not meet a “high enough standard”, then it might be time to reexamine how we think about the Charter.  Maybe the Charter is not the identity-defining symbol we thought it to be, that fundamental rights and freedoms are a suggestion and not something that we believe to be absolute.  If not, then how is it that fundamental rights and freedoms that are understood to be guaranteed are written in a way that makes them anything but guaranteed?

Overly Complicated Legal Documents

Why are legal documents written in the most complicated of ways? Why are legal documents impossible for regular people to understand and discuss? And who does that help? A superficial response might sound like, “because they are rooted in colonialism”.  However, a holistic understanding of the problem requires going back to the feudal times of medieval Europe, examining legal language under a “Classism lens”, to understand how such language was rooted in creating a separation between the ruling class and working class.

The complexities of legal language, commonly referred to as “legalese”, and how so much of it is obfuscated and “open for interpretation” is the result of the British approach to law, specifically common law.  Common law got its name because of how that approach to law was common across the Monarchy’s land, where the rulings are almost entirely based on past legal precedents.  However, what few people are likely to be aware of is that the common law approach to law was the result of a Monarchial penal system from feudal times that needed to evolve for the divide between classes to continue to exist.

Looking back at feudal approach to government, it was rooted in absolute loyalty to the King, and the Monarchy would ensure that land would get redistributed to those who pledged loyalty and support, creating a cast of lords and nobles.  What the feudal penal system prioritized was the empowerment of those same lords and nobles over the local peasants, who were living and working on the land for those same lords and nobles.  This allowed for severe punishments against the peasant class tied to the land and who became the property of whoever owned that land to quell any resistance movements.

At some point, the Monarchial ruling class determined that it was necessary to standardize the penal system, which is what led to the creation of the “common law” system—rooted in upholding the separation between classes, but also for greater control.  As a result, the ruling class of the time leveraged their position to establish an unchallengeable set of standards rooted in their beliefs, explanations, perceptions and values.  It is also around this time that language (literacy) began being seen as a tool to create for even greater separation between classes, and it was not until the mid-1800s that the power of communication would become a subject of interest for two of history’s most polarizing thinkers.

Prior to Karl Marx (1818-1883) and Friedrich Engels (1820-1895), philosophers had largely focused on analyzing the world, not how to create change.  The two are credited as being the first modern thinkers to introduce the world to a post-secondary standard of thinking on how communication was science and the power of vernacular to contribute to social contagion.  Language (literacy) was described as a key tool in establishing systemic and cultural barriers between ruling and working classes, and for making things work for preferred groups and outcomes.  Although the two predominately focused on capitalistic societies for the purposes of their critiques, their theory is equally true and applicable to all democracies and non-democracies.  Instead of just limiting their theory to economics, that thinking should be applied to better understand the dynamics behind different power structures and forms of ruling governments, because of how closely language and power are interconnected.

Most of human history has seen social order being forced on people based on class.  Much of that order was thanks to the transactional properties of language, where lower classes consented to that order because of how it was presented by ruling classes.  The state and institutions were referred to as being universally beneficial, and the masses generally accepted the thought that the dominant groups would represent their interests as well.  Something seems to be changing, however, as mass sentiment about the state, institutions, and ruling groups being benevolent forces that are serving everyone’s best interest is dissipating.  As it pertains to democratic societies, free and fair elections only go so far if the majority of the society lacks the necessary literacy to read and detail the laws of the land, where “legalese” is the ruling language and at the very core of power.

Exploiting the Words

A Canadian high school graduate would struggle to comprehend legislation that affects their life written in legalese.  A Canadian post-secondary school graduate without a background in law would also struggle to comprehend such legislation if it were written in legalese.  Both kinds of graduates should be able to do so, not just those who graduate with backgrounds in law and are literate in the jargon.  Legislation that affects Canadians’ lives should be written in ways that every Canadian can understand.

Few people may be aware that the US was once on trajectory to be the first nation in human history to rid itself of “legalese”, to make laws more comprehensible and for federal regulation to be written in Layman’s terms.  It was the 1970s and Richard Nixon was the President, but those efforts cratered after President Nixon was impeached and decided to resign.  Fast forward to 2024, suggestions to simplify the language in which laws are written is heating up again, and debate around “classism” is reemerging.

Leading arguments from lawyers who are against eliminating “legalese” from laws seem to center around the idea that doing so would take up too much time and waste unnecessary resources, and moving away from such language would limit the ability to account for a wide range of situations and unforeseen scenarios.  Both lines of thought disregard the language as being able to simplify the most complicated of ideas without such ideas losing their substance in the process.  Because it seems most laws could be simplified without losing their meaning and without that simpler language distorting their meaning during that process.

Canada’s First Nations make up the majority of those who were exploited and disadvantaged through the application of “legalese”.  Perhaps the secret recipe for making the transition from legalese to more simplified terms lays in approaching the matter from a place of “Truth and Reconciliation”.  Maybe one day when we make that transition, we can get to a point where when the Charter of Rights and Freedoms is referenced, like the right for all those in Canada to life, liberty and security, or people being equal before and under law and having equal protection and benefit of the law, that can mean what it reads.

What’s to Follow

Seeing how “legalese” makes it difficult for a common-sense solution related to human trafficking victims without legal status to be in Canada, and whose deportation will be prioritized over police assisting them and going after the organized criminal groups involved, and it is institutional stakeholders becoming the key power brokers behind what happens to these victims.  More information is needed, however, including connecting with different provincial governments, the federal government, and federal and provincial political parties, as well as all three levels of policing, organizations that work and serve temporary migrants, academic thinktanks, and international bodies including the UN and INTERPOL.

Thus far, none of these stakeholders have suggested they would be against the idea of prioritizing going after human traffickers instead of expediting the deportation of those without legal status. Nor does it seem they would be against looking for ways for more to be done for victims who are exploited on the basis of that temporary status.  A good example might be Canada’s Good Samaritan Drug Overdose Act, where people calling 9-1-1 regarding an overdose receive some legal protection from  being charged with possession or with breaching parole.  So, stay tuned!