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Issues Brief - Number 1
The mission of the Pierre Elliott Trudeau Foundation since its inception has been to support engaged scholarship and research excellence on issues of enduring importance to Canada and the world. Often, the findings of this scholarship hold relevance for issues of immediate public interest. By giving a platform to research and evidence too often confined to the academy, this issues brief hopes to contribute to the corpus of informed input on current policy and moral debates around national security, immigration and refugee policy, and pluralism and the treatment of minorities. Spurred by the tragic events of 29 January in Quebec City and resurgent debate around the willingness of Western nations to accept migrants and refugee claimants, it highlights contributions by Foundation fellows and scholars from the past few years. 

In this issues brief, we highlight the work of five Foundation fellows and scholars who have reflected on how government responses to terrorism and migration have shifted in the current environment. We begin with 2013 fellow Kent Roach and his colleague Craig Forcese, who have written extensively on Canada’s Antiterrorism Act (Bill C-51, 2015) and Canada's approach to combating terrorism more generally.
Combatting Terrorism Effectively and With Balance
In an op-ed that appeared in the National Post on 17 September 2015, Kent Roach, 2013 fellow, and his colleague Craig Forcese noted that "Canadians are right to be concerned about terrorism. A close examination of the data suggests [terrorism] is not an existential threat, but it is a real one. Terrorist attacks are overt acts of political violence, the scope and lethality of which are limited only by the capacity and imagination of their perpetrators. They are unpredictable and designed to make us do things, or at the very least, fear things. Terrorism is a conscious assault on freedom, in a way that is dramatically different from the accidental perils of living. Such conduct demands a response from the state.”
 
But Roach and Forcese went on to say that “Canadians are also right to be concerned about the freedoms sacrificed by Bill C-51. They should be even more alarmed that those rights are sacrificed unnecessarily, for no appreciable security gain. And they should be especially concerned that no party has so far shown itself prepared to grapple with the real problems that ail antiterrorism efforts in Canada.”
 
What are those real problems? In False Security: The Radicalization of Canadian Antiterrorism (Toronto: Irwin Law, 2015), Roach and Forcese argue that compared
to the methods used in other democracies, Canadian terrorism prosecutions are unwieldy, complex, and infrequent. Canada’s intelligence and police agencies do not share information effectively, and CSIS intelligence cannot readily be used as evidence in criminal trials. Roach and Forcese assert that the quick fixes in Bill C-51 are no substitute for efficient terror investigations and prosecutions leading to convictions and meaningful prison terms.
 
Another real problem is under-investment in prevention. For this, Roach and Forcese suggest that Canada look to democracies that are delivering multidisciplinary and community-based programs to dissuade extremists from violence. They also caution against a perspective that views only Daesh (ISIS)- and Al Qaeda-inspired violence as terrorism: two years after the publication of their book, the January 2017 killing of six worshipers in a Québec City mosque affirms Roach and Forcese’s conviction that terrorism in Canada has been, and continues to be, motivated by a wide range of political views, including those of violent right-wing extremists (see the Canadian Incident Database, a searchable inventory of terrorist and violent extremist incidents with a Canadian connection).
Migration and Asylum Challenges: Toward a Global Migration Policy
Post 9/11, governments have questioned whether the international and domestic legal rules meant to protect refugees are still consistent with states’ responsibility to ensure national security. As the unplanned flow of people has increased in recent  years, controlling migration and borders has become more and more central to security policies in many Western nations.
 
In his 2009 lecture "Dealing with Migration: a Test for Democracies," 2008 fellow François Crépeau spoke of the implications of looking at immigration through the lens of national security and criminal law. According to Crépeau, this approach not only affects the human rights of migrants, but may also be inimical to the safety and security of migrants and non-migrants alike.
 
In a talk delivered at Ryerson University in October 2016, Professor Crépeau, who has been the United Nations Special Rapporteur on the Human Rights of Migrants since 2011, noted that nationalist, populist politicians are increasingly dominating the narrative about migration with stories about newcomers stealing jobs, creating insecurity, and changing our
values, even though the evidence suggests otherwise. Crépeau also asserted that prohibitions and repressive policies only entrench migrant smuggling operations and underground labour markets. In his view, the only way to reduce smuggling and unethical recruitment is to regularize the mobility market by offering safe, accessible, and affordable mobility solutions.
 
For these reasons, Crépeau advocates for a long-term global mobility vision that would start with our changing our collective mindset. According to him, we should start by acknowledging that migrants will come, no matter what. The United Nations High Commissioner for Refugees estimated in December 2015 that the number of refugees, asylum seekers, and internally displaced persons around the world topped 65 million:  this represents nearly 10% more people since the end of 2014 and is the highest number since the end of the Second World War. As long as war, repression, and hunger threaten, the drive to migrate will continue. According to Crépeau, the goal should be for most migrants to use official channels to enter and stay in host countries.
How Can the Migrant Crisis Improve the Refugee Protection System?
What explains the increasing hostility towards migrants, given the well-known dangers that so many of them are fleeing? In her 2014 Big Thinking lecture, 2012 fellow Catherine Dauvergne speaks of the evolution of immigration law and policy in the "settler societies" of Australia, Canada, New Zealand, and the United States – countries settled, or conquered, by Europeans for the first time. Dauvergne asserts that in these countries, and indeed in Western countries in general, we are witnessing a convergence of migration policies towards a new, mean-spirited politics of migration. She attributes this change to three factors: the crisis of asylum, the fear of Islamic fundamentalism, and the demise of multiculturalism.
 
Dauvergne’s book, The New Politics of Immigration and the End of Settler Societies, reflects on the consequences of this change for how we talk about and regulate migration.


And in an unpublished piece, Dauvergne suggests three ways to use the migrant 
crisis to improve a refugee protection system that has protected millions of people since 1951 but is now out of date:

First, change international refugee law to include a requirement for resettlement. Right now, no state is obligated to take in refugees from afar, and few do.  An obligation to resettle should be part of the international legal regime.
 
Second, require that all states party to international refugee law contribute a set and predictable amount to a global refugee support fund. States that host fewer refugees should pay more, those that host more would pay less, those who host the most would receive money from the fund.
 
Third, strengthen the right to seek asylum by making refugee deterrence mechanisms overseas illegal and eliminating legal barriers (like safe third country provisions) to asylum.
Migration, National Sovereignty, and Executive Power
Jeremy Webber, 2009 fellow and dean of law at the University of Victoria, published a book chapter entitled “National Sovereignty, Migration, and the Tenuous Hold of International Legality” (in Of States, Rights, and Social Closure. New York: Palgrave MacMillan, 2008) discussing Australia’s response to the arrival of asylum seekers off the northern coast of Australia in the early 2000s. Webber’s article examines the claim that the Australian government retained inherent executive power to defend Australia against encroachment and that this allowed it to repel asylum seekers without triggering the protections of the Australian Migration Act.
The majority of the country’s Federal Court sided with the government, finding that the authority to repel non-citizens lay within executive power and the Migration Act had not displaced this authority.
 
Webber’s article is relevant today in examining the use of strong executive action in relation to asylum seekers, the attempt to use executive power to override domestic or international law, and the role of the courts in reviewing such action. He argues that the displacement of legal controls by executive power, all in the name of national sovereignty, misunderstands the nature of sovereignty and law in a pluralistic democracy.
And What It All Meant to a Foundation Scholar
The securitization of immigration and its effects on individuals takes on a more immediate nature with the reflections of 2007 scholar Sarah Kamal. Of Chinese-Iranian ethnicity, Kamal has always been a minority in the countries where she has lived. Her experience and her work with Afghan refugees prompted her to reflect on why and how groups include and exclude.
 
Accepted into a master’s program in the United States for 2002, Kamal wrote a blog in 2003 about her experience with the National Security Entry-Exit Registration
System, a Bush-era regulatory framework affecting majority Muslim states and North Korea. While Kamal’s entries were written in relation to post-9/11 events, her feelings of anxiety, powerlessness, and indignation resonate today among a new generation of excluded people. Living through month after month of scrutiny, mistrust, and differentiated treatment, and contrasting that to the courage and vulnerability shown by some of the Afghanis she worked with, Kamal came to realize that true security comes not from building walls, but from building bridges.
As we send out this issues brief, questions around migration, national security, and human rights and values are continuing to evolve. Over the past few months, an increasing number of migrants have crossed by foot from the United States into Canada to claim refugee status. This has triggered discussion in Canada about appropriate policy responses. The landscape is likely to shift again with reactions to the US president’s new executive order on immigration, upcoming elections in Europe, and the advent of warmer weather in the Mediterranean.

We know that members of the Foundation community will continue to debate these and other developments. To comment on this issue or to contribute to the Foundation's next issues brief on related questions, please write to us at ftfcom@trudeaufoundation.ca.
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