CITIZENSHIP, NON-CITIZENSHIP AND THE RULE OF LAW.

• Author: Macklin, Audrey
• Position: Forum: Rights in Times of Challenge

1. Introduction

   Were one to draw a Venn diagram that put leading administrative law judgments in one circle, and leading migration and citizenship jurisprudence in another, Roncarelli v Duplessis (1) and Baker v Canada (Minister of Citizenship and Immigration) (2) would fall in the overlapping zone. Each judgment belongs in the canon of jurisprudence about the meaning of citizenship and each articulates an expansive vision of the rule of law.

   I want to explore aspects of the relationship between citizenship and the rule of law in Canada. I do not advance the extravagant claim that the rule of law has no purchase on the state's assertion of power over non-citizens. But I do contend that a kind of immigration exceptionalism dilutes the rule of law's operation in relation to non-citizens.

   I begin by setting out some uncontroversial attributes of the rule of law. I then provide snapshots from legislation, jurisprudence, and "law in action" that exhibit countercurrents at work in migration law that divert, attenuate or dissipate the force of these rule of law principles. I begin on a high note, by considering the role played by citizenship in Roncarelli and Baker respectively. Next, I present vignettes from the ordinary operation of immigration and refugee law to illustrate the tenuous grasp of standard rule of law principles in this sphere. Finally, I offer tentative suggestions about the source of this immigration exceptionalism.

2. The Rule of Law

   A central tenet of the rule of the law is that the exercise of state power through law must be accountable to law. The rule of law thus positions itself against arbitrary exercise of public power. Beyond that, the scope, content, and power of the rule of law are each and all contested. Even Justice Rand's conception, which invokes an "implied bill of rights", is more expansive than some, but I do not intervene in that debate here (3) or purport to offer a comprehensive account of the rule of law.

   For 19th century constitutional lawyer AV Dicey, fidelity to the rule of law required subjection of "every man, whatever be his rank or condition, [...] to the ordinary law of the realm." (4) The private individual and the state actor were equally subject to law, and equal before the law, and equally amenable to the jurisdiction of the ordinary tribunals." A commitment to the dignity of the legal subject is embedded in the norm that the state is answerable for the exercise of power over private individuals. In recent jurisprudence, the Supreme Court of Canada uses the phrase "culture of justification" to evoke what an administrative state permeated by the rule of law might look like. (5)

   The availability of judicial review as the main forum for supervising government officials in their exercise of statutory power is another element of the rule of law. State actors cannot be the final arbiters of their own power; the independence and expertise of the judiciary is important to the legitimacy of review. (6) The intrusiveness of judicial review has been blunted by the doctrine of judicial deference, but access to the courts remains so vital to the Supreme Court of Canada's vision of the rule of law that it endowed judicial review of administrative action with constitutional protection under s. 96 of the Constitution Act, 1867. (7)

   Finally, a basic requirement of the rule of law is that state officials, tribunals, agencies, boards, commissions, and Ministers who acquire power by statute must act within their statutory mandate. Actions that exceed their jurisdiction are ultra vires. This idea of jurisdiction as bounded authority trades on geographic metaphors of bordered space. In this sense, it resonates with the contemporary nation-state defining itself through the policing of geopolitical borders. But whereas judicial review is preoccupied with preventing power from spillage over jurisdictional boundaries, immigration and citizenship law in a world of nation-states is obsessed with protecting borders from unauthorized incursion. To foreshadow my conclusion, one way of expressing the tension animating this article is to suggest that policing borders against entry by non-citizens tends to exert greater force than the rule of law's concern about preventing state power from escaping the jurisdictional boundaries of lawful authority.

   But for the moment, I simply want to emphasize the dignity of the legal subject, access to judicial review, and fidelity to statutory mandate as foundational and relatively uncontroversial ingredients of the rule of law. I now turn to examining how these principles manifest in immigration and citizenship law.

   1. Citizenship and the Rule of Law

      Citizenship signifies membership in a community. For the last few hundred years, the most salient community has been the political unit of the nation-state. But citizenship has many facets, two of which matter for present purposes. One is the legal status of citizenship. That is the citizenship that entitles one to enter and remain in Canada. Non-citizens do not have that right. People acquire citizenship status by birth on Canadian soil or to a citizen parent, or by immigrating and subsequently naturalizing as citizens. The person who lacks the legal status of citizenship on the territory she inhabits is a migrant, a non-citizen, a foreigner, an alien, or a stateless person if she has no citizenship anywhere.

      A second dimension of citizenship, "substantive" citizenship, addresses the experience of membership in a political community--the enjoyment of the rights, benefits, entitlements, as well as the performance of the duties and obligations of citizenship. One of the most influential accounts of substantive citizenship was offered by British sociologist T.H. Marshall in his 1951 book Citizenship and Social Class. For Marshall, "[c]itizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed." (8) On this version, citizenship is not a pre-requisite to rights; it is the outcome or the label we attach to those who already enjoy them. Marshall conceived of rights in broad terms, and organized them into three groups: civil rights (freedom of speech, religion and contract, property rights, and the rule of law); political rights (the franchise, the right to stand for office), and social rights (income support, education, and health care).

      Marshall's hypothesis was that the gradual expansion and extension of rights to marginalized groups within the nation-state marks the functional enrolment of the people into citizenship. They become citizens--in the substantive sense--through recognition as bearers of political, civic, and social rights. But note that Marshall's model is closed. It presupposes, as do many contemporary scholars, that his subjects are always already citizens in the legal sense. In the model of Marshallian citizenship, the opposite of the citizen is not the non-citizen, or the foreigner, but rather the "second-class citizen." And when someone complains of being a second-class citizen, they expose the gap between the promise of equal citizenship and the reality of discrimination, subordination, and marginalization. The normative task of his project is to make good on the promise of equal citizenship. But non-citizens who complain of injustice cannot access the language of second-class citizenship--because the easy rejoinder is that they are not citizens. They must fasten their claim to an identity that transcends or is otherwise independent of citizenship.

      Importantly, the rule of law does not disavow non-citizens: all those subject to law are legal subjects for purposes of the rule of law. And yet, within any polity that operates on a citizenship paradigm--which is to say, all states--claims of non-citizens (qua non-citizens) that sound in the rule of law seem less audible to courts and to state actors. I want to explore what accounts for the muffling.

   2. All Law's Subjects

      Frank Roncarelli and Mavis Baker were both outsiders. Their stories are well known to recent generations of lawyers and law students. Mr. Roncarelli was a Jehovah's Witness of Italian background in 1950s Quebec, a time when the Catholic Church and autocratic Premier Maurice Duplessis ruled social and political life in that province. The Jehovah's Witnesses were vehement and relentless critics of Catholicism. Premier Duplessis vowed "a war without mercy (9)" against the Jehovah's Witnesses, and his government enacted various laws to suppress their proselytizing activities. Frank Roncarelli did not distribute Jehovah's Witness literature, but he acted as a surety for co-religionists who were arrested for doing so. That was the motive for permanently revoking his liquor licence and thereby destroying his business. The Quebec statute regulating the sale of liquor in Quebec made the issuance, extension, refusal, or cancellation of a liquor licence a matter of broad statutory discretion. The government's argument was that since a liquor licence was a privilege, not a right, Roncarelli had no basis for contesting whether or how the privilege was revoked: if you are not entitled to something in the first place, you are not entitled to complain if it is taken away.

      In Justice Rand's account, Frank Roncarelli is not only a businessman and a Jehovah's Witness, but also a citizen, and it is on citizenship that Rand J's judgment repeatedly alights. (10) No other judge directly mentions it. (11) The work that citizenship performs in Justice Rand's judgment is to fortify the legal link joining Roncarelli to his liquor licence in two ways. The first is rhetorical. To be identified as a citizen is to partake in a rank or honorific that entails a certain stature, esteem, and worthiness in relation to the state and the community. A liquor licence may be a statutory privilege, but Roncarelli is not a mere supplicant...