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The (Mis-)Uses of Analogy: Constructing and Challenging Crimmigration in Canada
The concept of crimmigration is said to represent the blurring of criminal and immigration law, producing a sui genesis form of law within which sovereign power operates free from constitutional constraints. First articulated in the United States, crimmigration theory is just as (if not more so) prescriptive as descriptive. Centuries of immigration exceptionalism have blocked the applicability of due process rights to detention and deportation proceedings. This fact requires advocates to persuade courts that an immigration measure is criminal in nature in order to vindicate rights. There is a risk that crimmigration theory rests on, and makes use of, faulty doctrine that banishes immigration law from constitutional terrain unless it can be absorbed into the substance of criminal law. This chapter examines how crimmigration is constructed and challenged in Canada, where constitutional rights are applicable to immigration law qua immigration law. Relying on analogy, courts are most directly concerned with whether an immigration measure deprives someone of high priority interests in life, liberty or security of the person, and not whether a measure is criminal in nature. Whether courts will intervene, however, is a separate matter. This question is also answered by analogy: that between migrants and criminals. Conceptions of risk and danger always inform conceptions of rights, which courts in practice decline to recognize in all but a handful of cases. The different form crimmigration assumes in Canada masks substantively similar results.